08-3187 Volume Appendix15.pdf - Medical Supply Chain
08-3187 Volume Appendix15.pdf - Medical Supply Chain
08-3187 Volume Appendix15.pdf - Medical Supply Chain
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IN THE UNITED STATES DISTRICT COURT<br />
FOR THE DISTRICT OF KANSAS<br />
SAMUEL K. LIPARI, )<br />
)<br />
Plaintiff, )<br />
)<br />
v. ) Case No. 07-CV-02146-CM-DJW<br />
)<br />
U.S. BANCORP, and )<br />
)<br />
U.S. BANK NATIONAL ASSOCIATION, )<br />
)<br />
Defendants. )<br />
DEFENDANTS’ RESPONSE TO PLAINTIFF’S<br />
OBJECTION TO MAGISTRATE ORDER<br />
COMPELLING DISCOVERY AND SANCTIONING THE PLAINTIFF<br />
Defendants U.S. Bancorp and U.S. Bank National Association, by and through counsel,<br />
file this Response to the Plaintiff’s Objection to the Magistrate’s Order Compelling Discovery<br />
and Sanctioning the Plaintiff. The Magistrate’s Order was correct on all accounts and should be<br />
upheld in its entirety.<br />
As noted in the Magistrate’s Order, the plaintiff failed to serve any response to plaintiff’s<br />
Motion to Compel. This alone is sufficient justification for the Magistrate’s ruling. See, D. Kan.<br />
R. 7.4. Nonetheless, the plaintiff contends that despite not serving any responses to defendants’<br />
Requests for Production, he as provided all responsive documents in a voluminous settlement<br />
package. Plaintiff’s arguments fail for two reasons.<br />
First, plaintiff did not assert this argument before the Magistrate’s ruling. If the plaintiff<br />
believes he has sufficiently responded to defendants’ discovery requests, he should have filed a<br />
response to the Motion to Compel asserting these arguments. But he did not do so and may not<br />
assert them here for the first time.<br />
2342450.01<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5576
Next, even if plaintiff had asserted this argument, service of his argumentative settlement<br />
brief (which exceeds 500 pages) does not relieve plaintiff of his responsibility to respond to<br />
defendants’ properly served discovery requests. In the context of discovery responses, courts in<br />
this District recognize that a party must specifically identify which documents are responsive to a<br />
particular request. See¸ e.g., Johnson v. Kraft Foods North America, Inc., 236 F. R. D. 535, 541<br />
(D. Kan. 2006).<br />
Therefore, even if plaintiff’s settlement brief contains some relevant<br />
information, mere service of it is still non-responsive because it does not delineate which<br />
documents are supposedly responsive to which requests.<br />
The plaintiff makes further accusations that the defendants have failed to comply with his<br />
discovery requests. These are false. While the plaintiff has submitted Requests for Production<br />
to the defendants, the defendants timely filed a Motion for Protective Order which is currently<br />
pending before this Court.<br />
Likewise, defendants also made formal objections to each of<br />
plaintiff’s discovery requests. The plaintiff failed to challenge these objections within the time<br />
frame set forth in D. Kan. Rule 37.1, and has therefore waived his ability to do so.<br />
But despite the objections and Motion for a Protective Order, the defendants still made a<br />
good faith effort to search for responsive information and have produced responsive<br />
non-privileged documentation where they could reasonably do so. Therefore, the defendants<br />
have fully complied with their obligations under the rules of this Court and the Federal Rules of<br />
Civil Procedure.<br />
The plaintiff has failed to show any justification for the District Court to overrule the<br />
Magistrate’s Order. For the above-stated reasons, the defendants request the District Court fully<br />
uphold the Magistrate’s Order compelling production of documents and sanctioning the plaintiff,<br />
and further grant defendants what other relief to which they are justly entitled.<br />
2342450.01<br />
2<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5577
Respectfully submitted,<br />
/s/ Jay E. Heidrick<br />
ANDREW M. DeMAREA KS #16141<br />
JAY E. HEIDRICK KS #20770<br />
SHUGHART THOMSON & KILROY, P.C.<br />
32 Corporate Woods, Suite 1100<br />
9225 Indian Creek Parkway<br />
Overland Park, Kansas 66210<br />
(913) 451-3355<br />
(913) 451-3361 (FAX)<br />
MARK A. OLTHOFF KS # 70339<br />
SHUGHART THOMSON & KILROY, P.C.<br />
1700 Twelve Wyandotte Plaza<br />
120 W 12th Street<br />
Kansas City, Missouri 64105-1929<br />
(816) 421-3355<br />
(816) 374-0509 (FAX)<br />
ATTORNEYS FOR DEFENDANTS<br />
U.S. BANCORP and U.S. BANK NATIONAL<br />
ASSOCIATION<br />
CERTIFICATE OF SERVICE<br />
I hereby certify that a copy of the above and foregoing document was filed electronically<br />
with the above-captioned court, with notice of case activity to be generated and sent<br />
electronically by the Clerk of said court (with a copy to be e-mailed to any individuals who do<br />
not receive electronic notice from the Clerk) this 18th day of July, 20<strong>08</strong>, to:<br />
Mr. Samuel K. Lipari<br />
297 NE Bayview<br />
Lee’s Summit, MO 64064<br />
/s/ Jay E. Heidrick<br />
Attorney for Defendants<br />
2342450.01<br />
3<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5578
DJW/bh<br />
SAMUEL K. LIPARI,<br />
IN THE UNITED STATES DISTRICT COURT<br />
FOR THE DISTRICT OF KANSAS<br />
v.<br />
U.S. BANCORP, N.A., et al.,<br />
Plaintiff,<br />
Defendants.<br />
CIVIL ACTION<br />
No. 07-2146-CM-DJW<br />
MEMORANDUM AND ORDER<br />
This matter is before the Court on Defendants’ Motion to Compel Compliance with Rule<br />
26(a)(1) (doc. 68). For the reasons set forth below, the Motion is granted in part and denied in part.<br />
I. Background Information<br />
On April 20, 2007, Plaintiff served his initial disclosures pursuant to Federal Rule of Civil<br />
Procedure 26(a)(1). His disclosure statement listed 67 individuals and provided a generic<br />
identification for each person, such as “Antitrust,” “Technology,” “Contracting,” “Funding,” and<br />
“FBI.” Other individuals were identified only as “Witness.” No addresses or telephone numbers<br />
were provided for any of the 67 listed individuals.<br />
Plaintiff’s disclosure statement also listed thousands of documents, 1 many of which were<br />
only briefly described. 2 Some of the documents were also identified by Bates Stamp Numbers.<br />
Accompanying the disclosure statement was a CD containing the documents listed in the disclosure<br />
statement. The disc contains more than 11,000 pages of documents.<br />
1 The listing of documents is approximately 39 pages in length.<br />
2<br />
For example, documents were identified as “Neil Marsh Invoice,” “Article When Private<br />
Goes Public,” “Vendor Rating a GPO Model.”<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5579
After the instant Motion to Compel was filed, Plaintiff served a supplemental disclosure<br />
statement that lists the names of 34 individuals. All but one of the 34 individuals listed in the<br />
supplemental statement were also listed in the initial statement. Unlike the initial statement, the<br />
supplemental statement provides addresses for 14 of the listed individuals.<br />
Defendants seek an order directing Plaintiff to amend his disclosures. Defendants contend<br />
that Plaintiff’s witness disclosures are deficient because Plaintiff fails to provide the telephone<br />
numbers and addresses for the individuals disclosed, and the subjects of those individuals’<br />
knowledge. Defendants assert that Plaintiff’s document disclosures are deficient because Plaintiff<br />
has disclosed thousands of pages of documents that are not only irrelevant to his claims but do not<br />
even pertain to this lawsuit. Defendants also contend that Plaintiff’s document disclosures are<br />
deficient because the written listing of documents is “not organized by category.” 3<br />
In his brief opposing the Motion to Compel, Plaintiff explains that he “has now supplemented<br />
his disclosures to include the addresses he knows,” 4 but states that “[t]he majority of<br />
witnesses . . . come from the defendants.” 5 He also states that in his initial disclosures he “included<br />
the relevant documents to the plaintiff’s claims and factual averments in his complaint.” 6<br />
In<br />
addition, he explains that he “has served the documents to the defendants in indexed form on a<br />
conveniently searchable disc, with an informative description of each.” 7<br />
3 Defs.’ Mem. in Supp. of Defs.’ Mot. to Compel (doc. 70) at p. 4.<br />
4<br />
Pl.’s Mem. In Opp. to Defs.’ Mot. to Compel (doc. 75) at p. 1.<br />
5 Id. at p. 7.<br />
6 Id. at p.1.<br />
7<br />
Id. at p. 7.<br />
2<br />
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In their reply, Defendants state that it is unclear whether Plaintiff’s supplemental list of 34<br />
individuals is intended to replace the list of 67 individuals disclosed in Plaintiff’s initial disclosure<br />
statement or whether it is simply another list that further identifies some of the initially disclosed<br />
67 individuals. In addition, Defendants point out that Plaintiff has failed to provide the subject<br />
matter of the discoverable information known by any of the 34 individuals listed in the supplemental<br />
disclosure statement. Defendants further state that the disc provided by Plaintiff is not searchable<br />
and is, in fact, password protected, which prevents the documents from being searched or re-created<br />
in .pdf format. Defendants concede, however, that they have been able “to view” each of the 11,000<br />
pages of documents that are on the disc. 8<br />
II.<br />
Discussion<br />
A. Disclosure of Witnesses<br />
Rule 26(a)(1)(A)(i) provides for the disclosure of certain individuals who are likely to have<br />
discoverable information about the case. It provides that a party must provide to the other parties:<br />
the name and, if known, the address and telephone number of each<br />
individual likely to have discoverable information –– along with the<br />
subjects of that information –– that the disclosing party may use to<br />
support its claims or defenses, unless the use would be solely for<br />
impeachment[.] 9 <strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5581<br />
8 Defs.’ Reply (doc. 79) at p. 1<br />
9<br />
Fed. R. Civ. P. 26(a)(1)(A)(i).<br />
3
Thus, under Rule 26(a)(1)(A)(i), Plaintiff was required to provide the following information<br />
about any individuals likely to have discoverable information that he may use to support his claims<br />
or defenses:<br />
! person’s name;<br />
! person’s telephone number and address, if known by Plaintiff; and<br />
! the subject of the discoverable information known by that person.<br />
As noted above, Defendants fault Plaintiff’s witness disclosures for three main reasons.<br />
First, Defendants contend that Plaintiff has failed to adequately identify the subject of the<br />
discoverable information known by each individual. This Court has found only a handful of cases<br />
that address the degree of specificity required under Rule 26(a)(1)(A)(i) regarding the subject of the<br />
discoverable information known by the potential witness. 10 Some guidance, however, can be<br />
gleaned from Federal Rule of Civil Procedure 26(g)(1), which provides that initial disclosures must<br />
10 See, e.g., Lobato v. Ford, No. 05-cv-01437-LTB-CBS, 2007 WL 2593485, at *5 (D. Colo.<br />
Sept. 5, 2007) (“While a party is not necessarily required to provide a minute recitation of the<br />
putative witness’ knowledge, the Rule 26(a)(1)(A) disclosure should indicate briefly the general<br />
topics on which such persons have knowledge.”); Hertz v. Luzenac Am., Inc., No. 04-cv-1961-LTB-<br />
CBS, 2006 WL 994431, at *7 (D. Colo. Apr. 13, 2006) (“[D]isclosures should provide the opposing<br />
party with enough useful information to make informed decisions regarding discovery and trial<br />
preparation”); Sender v. Mann, 225 F.R.D. 645, 650-51 (D. Colo. 2004) (holding that disclosures<br />
should be complete and detailed and should give opposing party more than “a laundry list of<br />
undifferentiated witnesses” and finding disclosures deficient where plaintiff identified brokers and<br />
investors as “having knowledge regarding the sale of promissory notes and the amounts owed to<br />
them pursuant to such notes” or “in some instances, having knowledge of other schemes attempted<br />
or contemplated by [Defendants]”); Crouse Cartage Co. v. Nat’l Warehouse Inv. Co., No. IP02-<br />
071CTK, 2003 WL 23142182, at *1 (S.D. Ind. 2003) (holding that “initial disclosures should be<br />
complete and detailed, and should give the opposing party information as to the identification and<br />
location of persons with knowledge so that they can be contacted in connection with the litigation.”);<br />
see also generally City and County of San Francisco v. Tutor-Saliba Corp., 218 F.R.D. 219, 221<br />
(N.D. Cal. 2003) (disclosures function “to assist the parties in focusing and prioritizing their<br />
organization of discovery.”).<br />
4<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5582
e based upon a “reasonable inquiry” by counsel or the disclosing party, and must be “complete and<br />
correct as of the time [they] are made.” 11 Guidance is also provided by the Advisory Committee’s<br />
Note to the 1993 amendments, which states that a “major purpose of the [Rule] is to accelerate the<br />
exchange of basic information about the case and to eliminate the paper work involved in requesting<br />
such information, and the rule should be applied in a manner to achieve those objectives.” 12<br />
Furthermore, the Advisory Committee explains:<br />
[The parties] are expected to disclose the identity of those persons who may be used<br />
by them as witnesses or who, if their potential testimony were known, might<br />
reasonably be expected to be deposed or called as a witness by any of the other<br />
parties. Indicating briefly the general topics on which such persons have information<br />
should not be burdensome, and will assist other parties in deciding which depositions<br />
will actually be needed. 13<br />
Thus, while a party is not required to provide a detailed narrative of the potential witness’<br />
knowledge, the Rule 26(a)(1)(A) disclosure should provide enough information that would allow<br />
the opposing party to help focus the discovery that is needed and to determine whether a deposition<br />
of a particular person identified as a potential witness might be necessary. Clearly, Plaintiff’s<br />
witness disclosures do not meet this standard. It is difficult to understand how Plaintiff’s generic<br />
descriptions of “Technology, “Communications,”“FBI,” etc., for these potential witnesses could<br />
11<br />
Fed. R. Civ. P. 26(g)(1).<br />
12 Fed. R. Civ. P. 26(a) advisory committee’s note (1993 amendment); see also Biltrite Corp.<br />
v. World Road Markings, Inc., 202 F.R.D. 359, 362 (D. Mass. 2001) (“The obvious purpose of the<br />
disclosure requirement of Rule 26(a)(1)(A) is to give the opposing party information as to the<br />
identification and location of persons with knowledge so that they can be contacted in connection<br />
with the litigation. . . .”).<br />
13<br />
Fed. R. Civ. P. 26(a) advisory committee’s note (1993 amendment).<br />
5<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5583
help focus the discovery efforts of Defendants or assist Defendants in determining whether a<br />
deposition of a particular listed individual might be necessary.<br />
Plaintiff may not excuse his compliance with this requirement merely because, as Plaintiff<br />
puts it, most of the identified individuals “come from the defendants.” 14<br />
The Rule requires the<br />
disclosing party to identify those individuals who may have discoverable information that the<br />
disclosing party may use to support its own claims and defenses. 15<br />
In other words, Plaintiff need<br />
only disclose those individuals that may have discoverable information that Plaintiff himself may<br />
use to support his claims or defenses. Once he makes that determination and identifies certain<br />
persons, he must provide a sufficient description of the discoverable knowledge that he believes they<br />
possess.<br />
Defendants also find fault with Plaintiff’s witness disclosures because Plaintiff fails to list<br />
addresses for many of the individuals and fails to list telephone numbers for all of them. Also, it is<br />
unclear whether the supplemental disclosure statement is intended to merely supplement the initial<br />
disclosure statement or to take its place.<br />
Rule 26(a)(1)(A)(i) requires the disclosing party to provide the name and telephone numbers<br />
of the individuals only “if known” by the disclosing party Thus, Plaintiff can be compelled to<br />
provide addresses and telephone numbers only if that information is known to him. Assuming that<br />
information is known to him, he is not excused from providing it merely because he believes<br />
Defendants already have knowledge of these individuals and their contact information.<br />
14 Pl.’s Mem. In Opp. to Defs.’ Mot. to Compel (doc. 75) at p. 7.<br />
15<br />
See Rule 26(a)(1)(A)(i) (party must disclose each individual “likely to have discoverable<br />
information . . . that the disclosing party may use to support its claims or defenses, unless the use<br />
would be solely for impeachment.” (Emphasis added.)<br />
6<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5584
In light of the foregoing, the Court directs Plaintiff to serve amended Rule 26(a)(1)(A)(i)<br />
disclosures that take the place of his initial and supplemental disclosures 16 and which provide<br />
sufficiently detailed information regarding the subject of each potential witness’ knowledge. In<br />
addition, the amended disclosures shall provide each individual’s address and telephone number,<br />
if known to Plaintiff. Finally, Plaintiff shall insure that any individuals listed are those who he<br />
believes are likely to have discoverable information that he may use to support his claims or<br />
defenses in this particular lawsuit. These amended disclosures shall be served on Defendants by<br />
July 30, 20<strong>08</strong>.<br />
B. Disclosure of Documents<br />
Rule 26(a)(1)(A)(ii) requires a party to provide to the other parties in the lawsuit “a copy ––<br />
or a description by category and location –– of all documents, electronically stored information, and<br />
tangible things that the disclosing party has in its possession, custody, or control and may use to<br />
support its claims or defenses, unless the use would be solely for impeachment.” 17 To comply with<br />
the Rule, then, Plaintiff was required to provide Defendants with the following:<br />
! either a copy or a description by category and location, of all documents, electronically<br />
stored information, and tangible things;<br />
! that are in Plaintiff’s possession, custody or control; and<br />
! that Plaintiff may use to support his claims or defenses in this lawsuit.<br />
Defendants essentially argue that the first and third of these requirements have not meet satisfied.<br />
16<br />
This should end any confusion as to whether the supplemental disclosures were intended<br />
to replace the initial disclosures.<br />
17<br />
Fed. R. Civ. P. 26(a)(1)(A)(ii).<br />
7<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5585
With respect to the first requirement, Defendants assert that Plaintiff’s written descriptions<br />
of the indexed documents are “far from informative” 18 and that the disc of documents provided by<br />
Plaintiff is password protected so that Defendants cannot search it and cannot re-create the<br />
documents in .pdf format. Defendants do not dispute, however, that they have been able to review<br />
all of the documents that are found on the disc. 19<br />
The Court finds that Plaintiff has complied with the first requirement by providing the disc<br />
to Defendants. By doing so, Plaintiff, in effect, provided a “copy” (albeit in electronic form) of each<br />
of the disclosed documents. The Rule is written in the disjunctive; Plaintiff may provide either a<br />
copy or a description of the documents by category and location. As Plaintiff provided a copy, he<br />
was not required to provide a description. It is thus immaterial that he may have provided<br />
insufficient descriptions of his documents on his written index of documents. Furthermore, there<br />
is no requirement that Plaintiff provide Defendant with a disc of the documents that is “searchable”<br />
or that allows the documents contained on it to be converted to .pdf format. Defendants concede<br />
that they have been able to review each of the documents contained on the disc; thus, whether the<br />
disc is searchable or allows the documents to be recreated in .pdf format is immaterial.<br />
With respect to the third requirement, Defendants argue that none of the thousands of pages<br />
of documents that Plaintiff has disclosed is relevant to this case. More specifically, Defendants<br />
argue that Plaintiff’s disclosures are a duplicate of what he served in another case, Lipari, et al. v.<br />
General Electric, et al., Case No. 0616-CV7421, filed in the Circuit Court of Jackson County,<br />
18 Defs.’ Reply (doc. 79) at p. 2.<br />
19 Id.<br />
8<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5586
Missouri (“General Electric case”). 20 According to Defendants, those documents are unrelated to<br />
this case because the General Electric case involves different defendants and different facts.<br />
Plaintiff argues that Defendants are incorrect when they argue that his document disclosures<br />
must be deficient because they are the same document disclosures made in the General Electric<br />
case. Plaintiff argues that both this case and General Electric stem from the same underlying facts.<br />
He states that “both cases cover the same events and rely on the same determination of <strong>Medical</strong><br />
<strong>Supply</strong> <strong>Chain</strong>, Inc.’s income if [Defendants] had not breached their contracts with <strong>Medical</strong> <strong>Supply</strong><br />
<strong>Chain</strong>, Inc.” and engaged in the other wrongful acts alleged in Plaintiff’s Complaint. 21 Plaintiff<br />
further states that he has disclosed “the documents related to the launch of his business and his<br />
claims against the defendants that the plaintiff will likely be using in court before a jury.” 22<br />
Not having reviewed the documents at issue and not being intimately familiar with the facts<br />
and allegations of this case, or for that matter, the General Electric case, the Court is not in a<br />
position to determine whether each and every document disclosed by Plaintiff is one that he might<br />
use to support his claims and defenses. The Court declines to enter an order, based upon nothing<br />
more than doubt and speculation, that would require Plaintiff to remove certain documents from his<br />
disclosures. The Court will, however, direct Plaintiff to file a supplemental Rule 26(a)(1)(A)(ii)<br />
disclosure statement in which he makes an affirmative statement that the documents listed on his<br />
initial Rule 26(a)(1)(A)(ii) written disclosure statement, and contained on the disc provided to<br />
20 Plaintiff states that the General Electric case is now filed in the Western District of<br />
Missouri, Case No. 07-<strong>08</strong>49-CV-W-FJG. Pl.’s Mem. in Opp. to Defs.’ Mot. to Compel (doc. 75)<br />
at p. 1.<br />
21 Id. at p.3.<br />
22<br />
Id. at p. 5.<br />
9<br />
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Defendants, are documents that he (1) has in his possession, custody, or control, and (2) may use<br />
to support his claims or defenses in this case. To the extent Plaintiff has disclosed documents that<br />
fall outside of this definition, he shall serve amended document disclosures that comply with Rule<br />
26(a)(1)(a)(ii) and this Memorandum and Order. The supplemental disclosure statement or amended<br />
disclosures shall be served on Defendants by July 30, 20<strong>08</strong>.<br />
III.<br />
Attorney’s Fees and Expenses<br />
Defendants do not expressly request an award of expenses or fees in connection with their<br />
Motion to Compel; they merely “request all . . . relief to which they are justly entitled.” 23 The Court<br />
must look to Federal Rule of Civil Procedure 37(a)(5), which deals with the payment of expenses<br />
incurred in connection with motions to compel. Subsection (C) provides for the payment of the<br />
moving party’s expenses if the motion to compel discovery is granted in part. It provides that the<br />
Court “may, after giving an opportunity to be heard, apportion the reasonable expenses for the<br />
motion.” 24<br />
To satisfy the requirement that the parties be given the opportunity to be heard, the Court<br />
directs Plaintiff to show cause, in a pleading filed on or before August 13, 20<strong>08</strong>, why he should not<br />
be required to pay a portion of the reasonable expenses and attorney’s fees Defendants incurred in<br />
making their Motion to Compel. Defendants shall have until August 24, 20<strong>08</strong> to file a response<br />
thereto, if they so choose. In the event the Court determines that expenses and fees should be<br />
awarded and apportioned, the Court will issue an order setting forth a schedule for the filing of an<br />
23 Defs.’ Mem. in Supp. of Mot. to Compel (doc. 70) at p. 5.<br />
24<br />
Fed. R. Civ. P. 37(a)(5)(C).<br />
10<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5588
affidavit reflecting the amount of expenses and fees that Defendants have incurred, and for the filing<br />
of any related briefs.<br />
IV.<br />
Other Relief<br />
Defendants ask that the Court caution Plaintiff that any further discovery abuses may result<br />
in severe sanctions, including the possible dismissal of his claims. The Court declines to enter such<br />
an order, finding that Defendants have not shown that Plaintiff has engaged in discovery abuses in<br />
connection with his Rule 26(a)(1) disclosures.<br />
IT IS THEREFORE ORDERED that Defendants’ Motion to Compel Compliance with<br />
Rule 26(a)(1) (doc. 68) is granted in part and denied in part, as set forth herein..<br />
IT IS FURTHER ORDERED that, on or before July 30, 20<strong>08</strong>, Plaintiff shall serve an<br />
amended Rule 26(a)(1)(A)(i) witness disclosure statement in compliance with this Memorandum<br />
and Order.<br />
IT IS FURTHER ORDERED that, on or before July 30, 20<strong>08</strong>, Plaintiff shall serve a<br />
supplemental Rule 26(a)(1)(A)(ii) document disclosure statement or amended Rule 26(a)(1)(A)(ii)<br />
document disclosures in compliance with this Memorandum and Order.<br />
IT IS FURTHER ORDERED that, on or before August 13, 20<strong>08</strong>, Plaintiff shall show<br />
cause in a pleading filed with the Court, why he should not be required to pay a portion of the<br />
reasonable fees and expenses that Defendants incurred in making their Motion to Compel.<br />
Defendants shall have until August 24, 20<strong>08</strong> to file a response thereto.<br />
11<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5589
IT IS SO ORDERED.<br />
Dated in Kansas City, Kansas on this 22nd day of July 20<strong>08</strong>.<br />
s/ David J. Waxse<br />
David J. Waxse<br />
U.S. Magistrate Judge<br />
cc:<br />
All counsel and pro se parties<br />
12<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5590
DJW/bh<br />
SAMUEL K. LIPARI,<br />
IN THE UNITED STATES DISTRICT COURT<br />
FOR THE DISTRICT OF KANSAS<br />
v.<br />
U.S. BANCORP, N.A., et al.,<br />
Plaintiff,<br />
Defendants.<br />
CIVIL ACTION<br />
No. 07-2146-CM-DJW<br />
MEMORANDUM AND ORDER<br />
This matter is before the Court on Plaintiff’s Motion for Leave to Amend Petition (doc.<br />
101). For the reasons set forth below, the Court denies the motion.<br />
I. Background Information<br />
Plaintiff filed this action on November 28, 2006 in the Circuit Court of Jackson County,<br />
Missouri. On December 13, 2006, Defendants removed the case to the United States District Court<br />
for the Western District of Missouri, based on diversity jurisdiction. The District Court for the<br />
Western District of Missouri transferred the case to this District. Plaintiff’s Petition asserts claims<br />
for breach of contract, fraud, misappropriation of trade secrets under R.S.Mo. § 417.450, breach of<br />
fiduciary duty, and prima facie tort.<br />
This Court held a scheduling conference on January 11, 20<strong>08</strong>, at which time the Court set<br />
a March 1, 20<strong>08</strong> deadline for filing motions to join additional parties or otherwise amend the<br />
pleadings. 1 In addition, the Court set a July 1, 20<strong>08</strong> deadline for completing discovery, a July 30,<br />
1 Scheduling Order (doc. 5), 3.a.<br />
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20<strong>08</strong> pretrial conference, and an August 15, 20<strong>08</strong> dispositive motion deadline. 2 Trial was set for<br />
March 2, 2009. On July 23, 20<strong>08</strong>, the Court converted the pretrial conference to a telephone status<br />
conference to take up Plaintiff’s motion to stay proceedings. 3<br />
Plaintiff filed the instant Motion to Amend on July 18, 20<strong>08</strong>, more than three and one-half<br />
months after the March 1, 20<strong>08</strong> deadline for filing motions to amend, and more than two weeks after<br />
the close of discovery. Plaintiff is proceeding in this action pro se.<br />
Two motions to dismiss have been filed in this case. The first motion was granted in part<br />
on November 16, 2007 (see doc. 39). Defendants filed a second motion to dismiss (doc. 43) on<br />
December 19, 2007, and that motion is pending before the District Court Judge.<br />
II.<br />
Plaintiff’s Proposed Amendments<br />
In support of his motion, Plaintiff asserts that his initial petition “was written for a Missouri<br />
state court forum,” 4 and that his amendments are intended “to correct any deficiencies found in the<br />
second dismissal.” 5<br />
Plaintiff’s motion does not include “a concise statement” of the proposed<br />
amendments, as required by D. Kan. Rule 15.1. He merely states that “[t]he amended text is<br />
between paragraphs 257 and 258 on pages 70 to 73.” 6<br />
Plaintiff attaches a copy of the proposed Amended Petition, in which he adds a new cause<br />
of action under Count VI. It is entitled:<br />
2 Id., 2.b., 3.c., and 4.b.<br />
3<br />
See Order (doc. 104).<br />
4<br />
Pl.’s Mot. for Leave to Amend Pet. (doc. 101) at p.1.<br />
5 Id.<br />
6<br />
Id.<br />
2<br />
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Cause of Action for Declaratory and Injunctive Relief Against US Bank NA and US<br />
Bancorp That Subtitle B, Section 351 of the Uniting and Strengthening America by<br />
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA<br />
Patriot) Act of 2001 Amendment of 31 U.S.C. §5318(g) Violates the First and Fifth<br />
Amendments of the United States Constitution. 7<br />
Proposed Count VI consists of nine paragraphs, in which Plaintiff alleges, inter alia, that<br />
Defendants have deprived him of property and prevented him “from seeking redress in their role as<br />
the enforcement officers or agents of the government under 31 U.S.C. § 5318(g).” 8<br />
Under Count<br />
VI, Plaintiff requests that the Court declare 31 U.S.C. §5318(g)(2)(A)(i) unconstitutional and enjoin<br />
Defendants “from withholding documents related to their enforcement of the USA PATRIOT Act.” 9<br />
Plaintiff argues that Defendants will not be prejudiced by the amendments. He contends<br />
there is no potential for prejudice because “the audio recording and email shows the parties knew<br />
they were in contract and then later used the USA PATRIOT ACT to default on the contract.” 10<br />
III.<br />
Standard for Ruling on a Motion to Amend<br />
Pursuant to Federal Rule of Civil Procedure 15(a)(2), once a responsive pleading has been<br />
filed, “a party may amend its pleading only with the opposing party’s written consent or the court’s<br />
leave.” 11 Rule 15(a)(2) specifies that the court “freely give leave when justice so requires.” 12<br />
Nonetheless, a court may refuse to grant leave to amend based on “undue delay, bad faith or dilatory<br />
7 Proposed Am. Pet., attached as Ex. 2 to Pl.’s Mot. for Leave to Amend Pet. (doc. 101).<br />
8<br />
Id., 257.2.<br />
9 Id., 257.9.<br />
10 Pl.’s Mot. for Leave to Amend Pet. (doc. 101) at p. 2.<br />
11 Fed. R. Civ. P. 15(a)(2).<br />
12<br />
Id.<br />
3<br />
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motive on the part of the movant, repeated failure to cure deficiencies by amendments previously<br />
allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility<br />
of amendment.” 13<br />
When a motion is filed beyond the deadline for filing motions to amend, as in this case, the<br />
court must also take into account the good cause standard found in Rule 16(b)(4), 14 which provides<br />
that a scheduling order deadline “may be modified only for good cause and with the judge’s<br />
consent.” 15 Thus, when a motion to amend is filed beyond the Scheduling Order deadline, the court<br />
must first determine whether the moving party has established “good cause” within the meaning of<br />
Rule 16(b)(4) so as to justify allowing the untimely motion, and, only after determining that good<br />
cause has been established, will the Court proceed to determine if the Rule 15(a) standard for<br />
amendment has been satisfied. 16<br />
To establish good cause under Rule 16, the moving party must show that the deadline “could<br />
not have been met with diligence.” 17 “Carelessness is not compatible with a finding of diligence and<br />
13<br />
Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quoting Foman v.<br />
Davis, 371 U.S. 178, 182 (1962)).<br />
14 Boatright v. Larned State Hosp., No. 05-3183-JAR-KGS, 2007 WL 2693674, at *6 (D.<br />
Kan. Sept. 20, 2007); McCormick v. <strong>Medical</strong>odges, Inc., No. 05-2429-KHV-JPO, 2007 WL 471127<br />
at *2 (D. Kan. Feb. 8, 2007).<br />
15 Fed. R. Civ. P. 16(b)(4).<br />
16 See, e.g., Boatright, 2007 WL 2693674, at *5 (applying two-part test); McCormick, 2007<br />
WL 471127, at *2 (same); Deghand v. Wal-Mart Stores, Inc., 904 F.Supp. 1218, 1221 (D. Kan.<br />
1995) (“Because the plaintiff sought leave to amend her complaint after the deadline established in<br />
the pretrial scheduling order, Rule 16 of the Federal Rules of Civil Procedure is the plaintiff's first<br />
hurdle. . . . Rule 15 is the next hurdle for the plaintiff.”).<br />
17 Simpson v. Home Depot, Inc., 203 F.R.D. 643, 644 (D. Kan. 2001) (quoting Denmon v.<br />
Runyon, 151 F.R.D. 404, 407 (D. Kan. 1993)); accord Deghand, 904 F.Supp. at 1221 (the moving<br />
(continued...)<br />
4<br />
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offers no reason for a grant of relief.” 18 Furthermore, the lack of prejudice to the nonmovant does<br />
not show “good cause.” 19<br />
IV.<br />
Analysis<br />
Plaintiff offers no explanation as to why he did not timely file his motion to add this new<br />
cause of action. In addition, Plaintiff has not made any attempt to demonstrate why he could not<br />
have met the March 1, 20<strong>08</strong> deadline through diligence. He merely argues that Defendants will not<br />
be prejudiced by the amendments, that his amendments are intended “to correct any deficiencies<br />
found in the second dismissal,” 20 and that his Petition needs to be modified because it was initially<br />
drafted as a state court pleading.<br />
Plaintiff’s arguments are not persuasive. As noted above, whether Defendants may or may<br />
not be prejudiced by the amendment is not a consideration in determining whether Plaintiff has<br />
established good cause for filing his motion to amend out of time. Secondly, Plaintiff’s assertion<br />
that the proposed amendments are intended to correct the deficiencies raised by Defendant’s second<br />
motion to dismiss does not establish good cause for why he did not move to amend by the March<br />
1, 20<strong>08</strong> deadline. Defendants filed their second motion to dismiss on December 19, 2007; yet<br />
Plaintiff waited seven months to file the instant motion to amend. The same is true with respect to<br />
17<br />
(...continued)<br />
party “must show that despite due diligence it could not have reasonably met the scheduled<br />
deadlines.”).<br />
18<br />
Deghand, 904 F.Supp. at 1221 (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d<br />
604, 609 (9th Cir. 1992)).<br />
19 Id. (citations omitted).<br />
20<br />
Pl.’s Mot. for Leave to Amend Pet. (doc. 101) at p. 1.<br />
5<br />
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Plaintiff’s contention that he needs to amend his Petition because it was drafted to be filed in state<br />
court, and not federal court. This case was removed to federal court in December 2006; yet Plaintiff<br />
did not move to amend until one and one-half years later.<br />
In light of the above, the Court holds that Plaintiff has failed to demonstrate why he could<br />
not have met the March 1, 20<strong>08</strong> amendment deadline with diligence, and, thus, has failed to<br />
establish “good cause” within the meaning of Rule 16(b)(4) so as to justify allowing his untimely<br />
motion. The Court is mindful that Plaintiff is proceeding pro se and that his filings must be liberally<br />
construed and held to a less stringent standard than pleadings filed by an attorney. 21 This requires<br />
that the Court look past any confusion of legal theories or failure to cite proper legal authority. 22<br />
Despite this liberal standard, the Tenth Circuit has made it clear that a court is not allowed to craft<br />
arguments or theories for a pro se plaintiff in the absence of any discussion of those issues. 23 Thus,<br />
the Court will not attempt to speculate or formulate explanations as to why Plaintiff may have been<br />
unable to file his motion to amend by the March 1, 20<strong>08</strong> deadline.<br />
As Plaintiff has failed to satisfy Rule 16’s good cause standard, the Court is not required to<br />
consider whether Plaintiff has satisfied the standard for amendment under Rule 15(a). 24 In light of<br />
21 See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“A pro se litigant’s pleadings<br />
are to be construed liberally and held to a less stringent standard than formal pleadings drafted by<br />
lawyers.”).<br />
22 Id.<br />
23 Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).<br />
24 If the Court were to consider Plaintiff’s motion under Rule 15(a), one factor the Court<br />
would consider is the potential for prejudice to Defendants. The Court finds that Defendants would<br />
be prejudiced by the introduction of a new cause of action at this late stage of the lawsuit –– after<br />
discovery has been completed and with the dispositive motion deadline only a few weeks away.<br />
Such prejudice would be sufficient for the Court to deny Plaintiff leave to amend under Rule 15.<br />
6<br />
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Plaintiff’s failure to demonstrate good cause for filing his motion to amend out of time, the Court<br />
must deny the motion.<br />
101) is denied.<br />
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave to Amend Petition (doc.<br />
IT IS SO ORDERED.<br />
Dated in Kansas City, Kansas on this 28th day of July 20<strong>08</strong>.<br />
s/ David J. Waxse<br />
David J. Waxse<br />
U.S. Magistrate Judge<br />
cc:<br />
All counsel and pro se parties<br />
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IN THE UNITED STATES DISTRICT COURT<br />
FOR THE DISTRICT OF KANSAS<br />
SAMUEL K. LIPARI, )<br />
)<br />
Plaintiff, )<br />
)<br />
v. ) Case No. 07-CV-02146-CM-DJW<br />
)<br />
U.S. BANCORP, and )<br />
)<br />
U.S. BANK NATIONAL ASSOCIATION, )<br />
)<br />
Defendants. )<br />
DEFENDANTS’ RESPONSE TO PLAINTIFF’S<br />
MOTION TO ALTER OR AMEND JUDGMENT<br />
AND TO STAY FURTHER PRE-TRIAL PROCEEDINGS<br />
Defendants U.S. Bancorp and U.S. Bank National Association, through counsel Shughart<br />
Thomson & Kilroy, P.C., file this response to plaintiff’s Motion to Alter Or Amend Judgment<br />
pursuant to Rule 59(e) and to stay further proceedings. Plaintiff’s request to stay the proceedings<br />
has already been denied by this Court and his Motion is moot. On July 18, 20<strong>08</strong>, plaintiff filed a<br />
Motion to Alter or Amend Judgment and Motion to Stay Further Pre-Trial Proceedings<br />
concerning the Court’s denial of his motion for time to extend discovery. In that motion,<br />
plaintiff also sought to stay all further pre-trial proceedings. See, Doc. #100. Defendants<br />
responded to this motion on July 28, 20<strong>08</strong>. See, Doc. #106. On July 30, 20<strong>08</strong>, the Court denied<br />
plaintiff’s Motion to Stay Further Pre-Trial Proceedings. See, Doc. #1<strong>08</strong>. Therefore, plaintiff’s<br />
request to stay further proceedings is moot.<br />
As to plaintiff’s request to Alter or Amend Judgment pursuant to Rule 59(e), defendants<br />
incorporate by reference all arguments made in their Memorandum In Opposition to Plaintiff’s<br />
Motion to Alter or Amendment Judgment and to Stay Further Pre-Trial Proceedings contained in<br />
Doc. #106, and request the Court deny plaintiff’s Motion.<br />
2356512.01<br />
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WHEREFORE, for the above stated reasons, defendants request this Court deny<br />
plaintiff’s Motion to Alter or Amend Judgment and to Stay Further Pre-Trial Proceedings (Doc.<br />
#107) and grant defendants all other relief to which they are justly entitled.<br />
Respectfully submitted,<br />
/s/ Jay E. Heidrick<br />
ANDREW M. DeMAREA KS #16141<br />
JAY E. HEIDRICK KS #20770<br />
SHUGHART THOMSON & KILROY, P.C.<br />
32 Corporate Woods, Suite 1100<br />
9225 Indian Creek Parkway<br />
Overland Park, Kansas 66210<br />
(913) 451-3355<br />
(913) 451-3361 (FAX)<br />
MARK A. OLTHOFF KS # 70339<br />
SHUGHART THOMSON & KILROY, P.C.<br />
1700 Twelve Wyandotte Plaza<br />
120 W 12th Street<br />
Kansas City, Missouri 64105-1929<br />
(816) 421-3355<br />
(816) 374-0509 (FAX)<br />
ATTORNEYS FOR DEFENDANTS<br />
U.S. BANCORP and U.S. BANK NATIONAL<br />
ASSOCIATION<br />
CERTIFICATE OF SERVICE<br />
I hereby certify that a copy of the above and foregoing document was filed electronically<br />
with the above-captioned court, with notice of case activity to be generated and sent<br />
electronically by the Clerk of said court (with a copy to be e-mailed to any individuals who do<br />
not receive electronic notice from the Clerk) this 11th day of August, 20<strong>08</strong>, to:<br />
Mr. Samuel K. Lipari<br />
297 NE Bayview<br />
Lee’s Summit, MO 64064<br />
/s/ Jay E. Heidrick<br />
Attorney for Defendants<br />
2356512.01<br />
2<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5645
IN THE UNITED STATES DISTRICT COURT<br />
FOR THE DISTRICT OF KANSAS<br />
SAMUEL K. LIPARI, )<br />
)<br />
Plaintiff, )<br />
)<br />
v. ) Case No. 07-CV-02146-CM-DJW<br />
)<br />
U.S. BANCORP, and )<br />
)<br />
U.S. BANK NATIONAL ASSOCIATION, )<br />
)<br />
Defendants. )<br />
DEFENDANTS’ RESPONSE TO THE COURT’S SHOW CAUSE ORDER TO<br />
PLAINITFF REGARDING PLAINTIFF’S RULE 26 DISCLOSURES<br />
Defendants, by and though counsel, file this Response to the Court’s Show Cause Order<br />
to Plaintiff Regarding his insufficient Rule 26(a)(1)(A) disclosures. On July 22, 20<strong>08</strong>, the Court<br />
granted defendants’ Motion to Compel Plaintiff’s Compliance with Rule 26 and ordered the<br />
plaintiff to supplement his Rule 26(a)(1)(A) disclosures by July 30, 20<strong>08</strong>. See, Doc. No. 103.<br />
The Court also ordered the plaintiff to file a pleading on or before August 13, 20<strong>08</strong> to show<br />
cause as to why he should not be required to pay for a portion of the defendants’ reasonable fees<br />
and expenses incurred with filing the motion to compel. Id. The Order stated that defendants<br />
would then have until August 24, 20<strong>08</strong> to file a response.<br />
The plaintiff has not supplemented his Rule 26 disclosures in accordance with the Court’s<br />
Order and failed to file any response to the Court’s show cause order. Any decision to award<br />
costs and fees related to this motion lies within the sound discretion of the Court. Despite the<br />
plaintiff’s refusal to comply with the Court’s mandate, the defendants take no position on the<br />
issue and leave the matter to the Court’s discretion.<br />
2360310.01<br />
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Respectfully submitted,<br />
/s/ Jay E. Heidrick<br />
ANDREW M. DeMAREA KS #16141<br />
JAY E. HEIDRICK KS #20770<br />
SHUGHART THOMSON & KILROY, P.C.<br />
32 Corporate Woods, Suite 1100<br />
9225 Indian Creek Parkway<br />
Overland Park, Kansas 66210<br />
(913) 451-3355<br />
(913) 451-3361 (FAX)<br />
MARK A. OLTHOFF KS # 70339<br />
SHUGHART THOMSON & KILROY, P.C.<br />
1700 Twelve Wyandotte Plaza<br />
120 W 12th Street<br />
Kansas City, Missouri 64105-1929<br />
(816) 421-3355<br />
(816) 374-0509 (FAX)<br />
ATTORNEYS FOR DEFENDANTS<br />
U.S. BANCORP and U.S. BANK NATIONAL<br />
ASSOCIATION<br />
CERTIFICATE OF SERVICE<br />
I hereby certify that a copy of the above and foregoing document was filed electronically<br />
with the above-captioned court, with notice of case activity to be generated and sent<br />
electronically by the Clerk of said court (with a copy to be e-mailed to any individuals who do<br />
not receive electronic notice from the Clerk) this 18th day of August, 20<strong>08</strong>, to:<br />
Mr. Samuel K. Lipari<br />
297 NE Bayview<br />
Lee’s Summit, MO 64064<br />
/s/ Jay E. Heidrick<br />
Attorney for Defendants<br />
2360310.01<br />
2<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5647
IN THE UNITED STATES COURT<br />
DISTRICT OF KANSAS<br />
SAMUEL K. LIPARI, )<br />
)<br />
Plaintiff, )<br />
)<br />
v. ) Case No. 2:07-cv-02146-CM<br />
)<br />
U.S. BANCORP and )<br />
U.S. BANK NATIONAL ASSOCIATION, )<br />
)<br />
Defendants. )<br />
PLAINTIFF’S ANSWER TO DEFENDANTS’ RULE 59 RESPONSE<br />
Comes now the plaintiff Samuel K. Lipari appearing pro se and makes the following answer to the<br />
defendants’ reply to plaintiff’s motion to alter or amend judgment.<br />
1. The plaintiff sought to stay proceedings in this action pending appeal.<br />
2. The defendants were unsuccessful in getting the appeal dismissed. See exb. 1 August 11 Order of<br />
the Tenth Circuit Court of Appeals.<br />
3. This action is the same matter in controversy before the appellate court by virtue of being the<br />
concurrent Missouri state court proceeding improperly removed to federal court during federal jurisdiction<br />
over all pendant state claims in the US Court of Appeals for the Tenth Circuit which now has reacquired<br />
appellate jurisdiction over the matter.<br />
In Little Rock School District v. Armstrong, No. 02-3867EA (8th Cir., 2004) the Eighth Circuit<br />
was required to determine if a “mandamus proceeding in 1987 involved the same ‘matter in controversy’ as<br />
the present questions before the court for purposes of 28 U.S.C. § 455(b)(2). The court’s analysis would<br />
find that because the state law claims are consistent and unchanged (and as yet never ruled on), the present<br />
action is the same “matter in controversy” as MSCI v. Neoforma et al now on appeal. See exb 1.<br />
Respectfully Submitted,<br />
S/ Samuel K. Lipari<br />
____________________<br />
Samuel K. Lipari<br />
297 NE Bayview<br />
Lee's Summit, MO 64064<br />
816-365-1306<br />
saml@medicalsupplychain.com<br />
Pro se<br />
1<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5648
CERTIFICATE OF SERVICE<br />
I certify I have sent a copy to the undersigned opposing counsel via electronic filing on 8/18/<strong>08</strong>.<br />
Mark A. Olthoff, Esq.,<br />
Jay E. Heidrick, Esq.<br />
Shughart Thomson & Kilroy, P.C.<br />
Twelve Wyandotte Plaza<br />
120 W. 12th Street<br />
Kansas City, MO 64105<br />
via email<br />
jheidrick@stklaw.com<br />
molthoff@stklaw.com<br />
ademarea@stklaw.com<br />
S/ Samuel K. Lipari<br />
____________________<br />
Samuel K. Lipari<br />
2<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5649
FILED<br />
United States Court of Appeals<br />
Tenth Circuit<br />
August 11, 20<strong>08</strong><br />
UNITED STATES COURT OF APPEALS<br />
Elisabeth A. Shumaker<br />
FOR THE TENTH CIRCUIT Clerk of Court<br />
MEDICAL SUPPLY CHAIN, INC.,<br />
Plaintiff,<br />
v.<br />
No. <strong>08</strong>-<strong>3187</strong><br />
NEOFORMA, INC, et al.,<br />
Defendants - Appellees,<br />
------------------------------<br />
SAMUEL K. LIPARI,<br />
Interested Party- Appellant.<br />
ORDER<br />
The court reserves judgment on the motion to dismiss filed by the appellees.<br />
The matter will be referred to the panel assigned to hear this appeal on the merits.<br />
Briefing on the merits shall proceed. The appellant shall file his opening brief<br />
within 40 days of the date of this order. Subsequent briefing shall proceed in<br />
Exb. 1<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5650
accordance with the schedule set forth in the Tenth Circuit Rules.<br />
Entered for the Court<br />
ELISABETH A. SHUMAKER, Clerk<br />
Ellen Rich Reiter<br />
Deputy Clerk/Jurisdictional Attorney<br />
2<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5651
IN THE UNITED STATES COURT<br />
DISTRICT OF KANSAS<br />
SAMUEL K. LIPARI, )<br />
)<br />
Plaintiff, )<br />
)<br />
v. ) Case No. 2:07-cv-02146-CM<br />
)<br />
U.S. BANCORP and )<br />
U.S. BANK NATIONAL ASSOCIATION, )<br />
)<br />
Defendants. )<br />
PLAINTIFF’S RESPONSE TO DEFENDANTS ASSERTION SHOW CAUSE<br />
ORDER OVER DISCOVERY PRODUCTION HAS NOT BEEN COMPLIED WITH<br />
Comes now the plaintiff Samuel K. Lipari appearing pro se and makes the following response to<br />
defendants’ assertion the plaintiff has failed to comply with this court’s show cause order.<br />
1. The plaintiff sought to obtain instruction from the defendants regarding what additional<br />
disclosures were required:<br />
From: Samuel Lipari [mailto:Saml@<strong>Medical</strong><strong>Supply</strong>Line.com]<br />
Sent: Monday, July 14, 20<strong>08</strong> 8:25 AM<br />
To: Jay Heidrick<br />
Subject: First set of Interrogatories<br />
Jay, I am under the impression I have already complied with your<br />
requests Will you send me the original request so I can comply with the<br />
Magistrate order. Thanks, S~<br />
Subject: Re: First set of Interrogatories<br />
Date: Tuesday, July 15, 20<strong>08</strong> 9:09 AM<br />
From: Samuel Lipari <br />
To: Jay Heidrick <br />
Hi Jay, any request you feel I have not complied with and that the Magistrate<br />
ordered. I already have the paragraph numbers from the order but need to know<br />
what specific request you feel I have not complied with. The settlement brief and<br />
exhibits I submitted to the magistrate are conclusive but if you need me to extract<br />
the information I will. Best regards, S~<br />
See exb. 1 email to defendants.<br />
2. The defendants only responded:<br />
“On 7/14/<strong>08</strong> 9:56 PM, "Jay Heidrick" wrote:<br />
Sam-<br />
Are you wanting the original interrogatories I sent you”<br />
See exb. 1 email to defendants.<br />
1<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5652
And in response to the plaintiff’s further clarification:<br />
“Subject: FW: Lipari v. US Bank...<br />
Date: Wednesday, July 16, 20<strong>08</strong> 8:40 AM<br />
From: Jay Heidrick <br />
To: Samuel Lipari Saml@<strong>Medical</strong><strong>Supply</strong><strong>Chain</strong>.com<br />
Cc: Jay Heidrick jheidrick@stklaw.com<br />
Conversation: Lipari v. US Bank...<br />
Sam-<br />
Per your request, attached are the Interrogatories and Requests for Production we served. The<br />
deficiencies in your responses were outlined in the Memorandum that accompanied our Motion to<br />
Compel. You should have a copy of that document, but I'll resend if necessary. Let me know.<br />
Thanks.<br />
Jay “<br />
See exb. 2 email to defendants.<br />
3. The plaintiff’s responses to the interrogatories are the plaintiff’s responses in full. A<br />
misunderstanding that persists despite the plaintiff’s repeated briefing and the clearly stated<br />
averments of his complaint is that the emails are the written and signed contract between the parties<br />
for US Bank and US Bancorp to provide escrow accounts. That is why everyone receiving the email<br />
from Kabbes has a signed copy of the agreement. The emails were required to be preserved by the<br />
defendants after receiving notice in the original case management conference from 2003. Instead<br />
they committed spoliation and now have only the documents produced by the plaintiffs.<br />
4. The defendants have not produced any of their Rule 26 required disclosure documents or witness<br />
information and have also failed to produce documents specifically requested by the plaintiff (see<br />
exb. 3) using frivolous assertions of protective orders this court refuses to rule on in order to<br />
covertly grant the defendants the immunity from Rule 26 this court cannot lawfully give.<br />
4. The signed document the defendants are demanding is actually one of the ten escrow deposit<br />
agreements the complaint expressly states were sent out to the candidates on the approval of Kabbes<br />
but then US Bancorp subsequently repudiated their agreement to provide escrows, as the complaint<br />
avers no deposits were ever made. This is the blank document furnished the defendants in the<br />
plaintiff’s Rule 26 production as proof of the plaintiff’s complaint. See exb 4.<br />
5. The defendants having destroyed their email in deliberate spoliation then sought and fraudulently<br />
procured sanctions against the plaintiff for producing Rule 26 discovery and now seek to have the<br />
2<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5653
plaintiff sanctioned for not producing a signed deposit agreement when the complaint alleges the<br />
deposits were never made.<br />
6. The plaintiff had originally sought an injunction in 2002 requiring the defendants to accept the<br />
deposits and to receive the $6000 fee from the plaintiff but the defendants prevailed and have used<br />
the denial of the injunction to fraudulently procure subsequent rulings sanctioning and denigrating<br />
the plaintiff.<br />
7. This court does not have jurisdiction over concurrent action state claims that were erroneously<br />
removed from Independence, Missouri and currently the court has lost jurisdiction over the federal<br />
action where these state claims are pendant due to the appeal in <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. v. US<br />
Bancorp et al.<br />
Respectfully Submitted,<br />
S/ Samuel K. Lipari<br />
____________________<br />
Samuel K. Lipari<br />
297 NE Bayview<br />
Lee's Summit, MO 64064<br />
816-365-1306<br />
saml@medicalsupplychain.com<br />
Pro se<br />
CERTIFICATE OF SERVICE<br />
I certify I have sent a copy to the undersigned opposing counsel via electronic filing on 8/18/<strong>08</strong>.<br />
Mark A. Olthoff, Esq.,<br />
Jay E. Heidrick, Esq.<br />
Shughart Thomson & Kilroy, P.C.<br />
Twelve Wyandotte Plaza<br />
120 W. 12th Street<br />
Kansas City, MO 64105<br />
via email<br />
jheidrick@stklaw.com<br />
molthoff@stklaw.com<br />
ademarea@stklaw.com<br />
3<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5654
S/ Samuel K. Lipari<br />
____________________<br />
Samuel K. Lipari<br />
4<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5655
Monday, August 18, 20<strong>08</strong> 9:06 AM<br />
Subject: Re: First set of Interrogatories<br />
Date: Tuesday, July 15, 20<strong>08</strong> 9:09 AM<br />
From: Samuel Lipari <br />
To: Jay Heidrick <br />
Hi Jay, any request you feel I have not complied with and that the Magistrate<br />
ordered. I already have the paragraph numbers from the order but need to know<br />
what specific request you feel I have not complied with. The settlement brief and<br />
exhibits I submitted to the magistrate are conclusive but if you need me to extract<br />
the information I will. Best regards, S~<br />
On 7/14/<strong>08</strong> 9:56 PM, "Jay Heidrick" wrote:<br />
Sam-<br />
Are you wanting the original interrogatories I sent you<br />
!Jay Heidrick<br />
Attorney At Law<br />
Shughart Thomson & Kilroy<br />
32 Corporate Woods, Suite 1100<br />
9225 Indian Creek Parkway<br />
Overland Park, KS 66210<br />
http://www.stklaw.com tel: 816-691-3743<br />
fax: 816-222-0519<br />
jheidrick@stklaw.com<br />
<br />
Page 1 of 3<br />
T Exb. 1<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma e <strong>Volume</strong> XV 5656
!<br />
From: Samuel Lipari [mailto:Saml@<strong>Medical</strong><strong>Supply</strong>Line.com]<br />
Sent: Monday, July 14, 20<strong>08</strong> 8:25 AM<br />
To: Jay Heidrick<br />
Subject: First set of Interrogatories<br />
Jay, I am under the impression I have already complied with your<br />
requests Will you send me the original request so I can comply with the<br />
Magistrate order. Thanks, S~<br />
********************PRIVATE AND<br />
CONFIDENTIAL********************<br />
This electronic message transmission and any files transmitted with it, are<br />
a communication from the law firm of Shughart Thomson Kilroy, P.C.<br />
This message contains information protected by the attorney/client<br />
privilege and is confidential or otherwise the exclusive property of the<br />
intended recipient or Shughart Thomson Kilroy. This information is<br />
solely for the use of the individual or entity that is the intended recipient.<br />
If you are not the designated recipient, or the person responsible for<br />
delivering the communication to its intended recipient, please be aware<br />
that any dissemination, distribution or copying of this communication is<br />
strictly prohibited. If you have received this electronic transmission in<br />
error, please notify by telephone (816-421-3355), collect or by electronic<br />
mail (solutions@stklaw.com ) and promptly destroy the original<br />
transmission. Thank you for your assistance.<br />
NOTICE: The Missouri Bar and Missouri Supreme Court require all<br />
Missouri attorneys to notify e-mail recipients that e-mail is not a secure<br />
Page 2 of 3<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5657
method of communication, that it may be copied and held by any<br />
computer through which it passes, and persons not participating in the<br />
communication may intercept the communication. Should you wish to<br />
discontinue this method of communication, please advise, and no further<br />
e-mail communication will be sent.<br />
Page 3 of 3<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5658
Monday, August 18, 20<strong>08</strong> 9:23 AM<br />
Subject: FW: Lipari v. US Bank...<br />
Date: Wednesday, July 16, 20<strong>08</strong> 8:40 AM<br />
From: Jay Heidrick <br />
To: Samuel Lipari Saml@<strong>Medical</strong><strong>Supply</strong><strong>Chain</strong>.com<br />
Cc: Jay Heidrick jheidrick@stklaw.com<br />
Conversation: Lipari v. US Bank...<br />
Per your request, attached are the Interrogatories and Requests for Production we served. The deficiencies in<br />
your responses were outlined in the Memorandum that accompanied our Motion to Compel. You should have<br />
a copy of that document, but I'll resend if necessary. Let me know.<br />
Thanks.<br />
Jay<br />
http://www.stklaw.com<br />
Jay Heidrick<br />
Attorney At Law<br />
Shughart Thomson & Kilroy<br />
32 Corporate Woods, Suite 1100<br />
9225 Indian Creek Parkway<br />
Overland Park, KS 66210<br />
tel: 816-691-3743<br />
fax: 816-222-0519<br />
jheidrick@stklaw.com<br />
From: Jay Heidrick<br />
Sent: Thursday, March 06, 20<strong>08</strong> 3:03 PM<br />
To: 'Samuel Lipari'<br />
Cc: Mark Olthoff; Jay Heidrick<br />
Subject: Lipari v. US Bank...<br />
Sam-<br />
Sam-<br />
I attach Defendants' First Requests for Production and First Interrogatories to Plaintiff. Please let me know if<br />
you have any questions.<br />
Thanks.<br />
Jay Heidrick<br />
Page 1 of 2<br />
Exb. 2<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5659
********************PRIVATE AND CONFIDENTIAL********************<br />
This electronic message transmission and any files transmitted with it, are a communication from the law firm of Shughart<br />
Thomson & Kilroy, P.C. This message contains information protected by the attorney/client privilege and is confidential or<br />
otherwise the exclusive property of the intended recipient or Shughart Thomson & Kilroy. This information is solely for the<br />
use of the individual or entity that is the intended recipient. If you are not the designated recipient, or the person responsible<br />
for delivering the communication to its intended recipient, please be aware that any dissemination, distribution or copying of<br />
this communication is strictly prohibited. If you have received this electronic transmission in error, please notify by telephone<br />
(816-421-3355), collect or by electronic mail (solutions@stklaw.com ) and promptly destroy the original transmission.<br />
Thank you for your assistance.<br />
NOTICE: The Missouri Bar and Missouri Supreme Court require all Missouri attorneys to notify e-mail recipients that e-<br />
mail is not a secure method of communication, that it may be copied and held by any computer through which it passes, and<br />
persons not participating in the communication may intercept the communication. Should you wish to discontinue this<br />
method of communication, please advise, and no further e-mail communication will be sent.<br />
Page 2 of 2<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5660
<strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong><br />
Empowering Health Systems,<br />
Optimizing <strong>Supply</strong> <strong>Chain</strong> Results!<br />
March 10, 20<strong>08</strong><br />
Dear Jay,<br />
I will be happy to confer with you about complying with my discovery production request at your earliest<br />
opportunity. I am available every weekday between 8am and 4pm except that the noon hour is usually spent away<br />
from my office. With prior notice I could take your call instead of lunch.<br />
I think the issue you raised with Aikens v. Deluxe Financial Services, Inc., 217 F.R.D. 533 (D.Kan., 2003) is a<br />
misperception over the reasonable particularity requirement of Rule 34. This overly generalized request form was<br />
avoided by my request, which uses “all documents related”, and “all records related” as a modifier to a sufficiently<br />
particularized event or occurrence and the persons and time frame involved where known. See footnote 11 of<br />
Clearone Communications, Inc. v. Chiang et al Utah Dist. Court Case No: 2:07cv00037TC<br />
https://ecf.utd.uscourts.gov/cgi-bin/show_public_doc2007cv0037-628 which also discusses Aikens.<br />
I still seek the documents and records I requested and in electronic form. I would be more receptive to modifying<br />
my requests if you produced the two documents your professional responsibility and diligence required before<br />
signing motions in this action - the written contract for escrow accounts and the written contract for a financial line<br />
of credit secured with part of each escrow account.<br />
My proposed order addressed provisions for you to redact privileged information and a line-by-line privilege log<br />
for later in camera review. Since this is the same in Missouri and Kansas, I think it is a good procedure.<br />
I knew, as did you that these issues would arise and attempted to address them in our case management order where<br />
we had Magistrate Waxse available. After your sole lost weekend in this case, you, Mark and Andrew decided not<br />
to further brief our dispute over this issue prior to the case management conference. I cannot help but be reminded<br />
of Andrew telling Magistrate Waxse that the previous case management report did not have to be in the correct<br />
form specified under local rule by Judge Waxse because the case would be dismissed.<br />
I fear more people are without healthcare each day because you have recently made a similar assurance to your<br />
client US Bancorp and that assurance is not based on law.<br />
Sincerely,<br />
Samuel Lipari<br />
<strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong><br />
297 NE Bayview<br />
Lee's Summit, MO 64064<br />
Phone: 816.365.1306<br />
Saml@<strong>Medical</strong><strong>Supply</strong><strong>Chain</strong>.com<br />
www.<strong>Medical</strong><strong>Supply</strong><strong>Chain</strong>.com<br />
Exb. 3<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5661
Monday, August 18, 20<strong>08</strong> 9:55 AM<br />
Subject: Re: Documents on CD for Rule 26 disclosures...<br />
Date: Wednesday, May 7, 20<strong>08</strong> 11:19 AM<br />
From: Samuel Lipari <br />
Reply-To: Samuel Lipari <br />
To: Jay Heidrick jheidrick@stklaw.com<br />
Conversation: Documents on CD for Rule 26 disclosures...<br />
Jay,<br />
Sorry for the misunderstanding. I have not password protected any of the files. I think we are using two<br />
different meanings of searchable, the table of contents leads you to documents by keywords. Some are<br />
scanned images where keyword searching, cutting and pasting is not possible. Some were made into pdfs<br />
with the software I could afford, not Adobe and you have to go into the properties section to alter or save.<br />
You are no doubt inconvenienced but that is the software I have and the form I have created and store the<br />
pdfs in the normal course of business. You on the other hand give me only the paper versions of MS Word<br />
documents for the few docs you have produced in discovery even though I have requested only electronic<br />
documents. I hope this helps. Best regards, S~<br />
Samuel Lipari<br />
<strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong><br />
297 NE Bayview<br />
Lee's Summit, MO 64064<br />
Phone: 816.365.1306<br />
Saml@<strong>Medical</strong><strong>Supply</strong><strong>Chain</strong>.com<br />
www.<strong>Medical</strong><strong>Supply</strong><strong>Chain</strong>.com<br />
This message is intended solely for the designated recipient, which may contain privileged or confidential<br />
information and may be subject to confidentiality agreement. Access to this email by any other recipient is<br />
unauthorized. If you are not the intended recipient, any disclosure, copying, distribution or action taken to<br />
be in reliance on its content is prohibited and may be unlawful. In no event shall this material be read,<br />
used, copied, reproduced, stored or retained by anyone other than the named recipient, except with the<br />
express consent of the sender or the named recipient. If you have received this message in error, please<br />
notify the sender immediately by reply and destroy this communication.<br />
----- Original Message -----<br />
From: Jay Heidrick<br />
To: Samuel Lipari<br />
Cc: Jay Heidrick<br />
Sent: Wednesday, May 07, 20<strong>08</strong> 9:54 AM<br />
Subject: Documents on CD for Rule 26 disclosures...<br />
Sam-<br />
In your response to our Motion to Compel, you indicated that the CD of documents you provided were<br />
searchable. That is not the case. The files are password protected that prevent any type of OCR, re-printing<br />
as a .pdf and searching. Please provide the password that will allow us to change the security setting for<br />
these files and make them searchable. Or please provide us with a new CD that allows OCR and searchable<br />
functions. Thanks.<br />
Jay<br />
Page 1 of 2<br />
Exb. 4<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5662
http://www.stklaw.com<br />
Jay Heidrick<br />
Attorney At Law<br />
Shughart Thomson & Kilroy<br />
32 Corporate Woods, Suite 1100<br />
9225 Indian Creek Parkway<br />
Overland Park, KS 66210<br />
tel: 816-691-3743<br />
fax: 816-222-0519<br />
jheidrick@stklaw.com<br />
********************PRIVATE AND CONFIDENTIAL********************<br />
This electronic message transmission and any files transmitted with it, are a communication from the law firm of Shughart<br />
Thomson & Kilroy, P.C. This message contains information protected by the attorney/client privilege and is confidential<br />
or otherwise the exclusive property of the intended recipient or Shughart Thomson & Kilroy. This information is solely for<br />
the use of the individual or entity that is the intended recipient. If you are not the designated recipient, or the person<br />
responsible for delivering the communication to its intended recipient, please be aware that any dissemination, distribution<br />
or copying of this communication is strictly prohibited. If you have received this electronic transmission in error, please<br />
notify by telephone (816-421-3355), collect or by electronic mail (solutions@stklaw.com ) and promptly destroy the<br />
original transmission. Thank you for your assistance.<br />
NOTICE: The Missouri Bar and Missouri Supreme Court require all Missouri attorneys to notify e-mail recipients that e-<br />
mail is not a secure method of communication, that it may be copied and held by any computer through which it passes,<br />
and persons not participating in the communication may intercept the communication. Should you wish to discontinue this<br />
method of communication, please advise, and no further e-mail communication will be sent.<br />
Page 2 of 2<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5663
DJW/bh<br />
IN THE UNITED STATES DISTRICT COURT<br />
FOR THE DISTRICT OF KANSAS<br />
SAMUEL K. LIPARI,<br />
v.<br />
U.S. BANCORP, N.A., et al.,<br />
Plaintiff,<br />
Defendants.<br />
CIVIL ACTION<br />
No. 07-2146-CM-DJW<br />
NOTICE AND ORDER TO SHOW CAUSE<br />
TO THE PLAINTIFF SAMUEL K. LIPARI:<br />
On July 22, 20<strong>08</strong>, the Court issued a Memorandum and Order (doc. 103) granting in part<br />
Defendants’ Motion to Compel Compliance with Rule 26(a)(1) (doc. 68). In that Order, the Court<br />
directed Plaintiff to serve on Defendants an amended Rule 26(a)(1)(A)(i) witness disclosure<br />
statement on or before July 30, 20<strong>08</strong>. In addition, the Court directed Plaintiff to serve a<br />
supplemental Rule 26(a)(1)(A)(ii) document disclosure statement or amended Rule 26(a)(1)(A)(ii)<br />
document disclosures by that same date. Defendants have informed the Court through a pleading<br />
filed on August 18, 20<strong>08</strong> (doc. 111) that Plaintiff has not served any such disclosures or disclosure<br />
statements on Defendants.<br />
IT IS HEREBY ORDERED that Plaintiff Samuel K. Lipari is required to show cause to<br />
United States District Judge Carlos Murguia in a pleading filed by August 27, 20<strong>08</strong>, why this case<br />
should not be dismissed with prejudice pursuant to Federal Rule of Civile Procedure 37(b)(2)(A)<br />
for failing to comply with the Court’s July 22, 20<strong>08</strong> Order (doc. 103).<br />
IT IS SO ORDERED.<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5664
A copy of this Order shall be sent to Plaintiff Samuel K. Lipari by regular mail and<br />
certified mail, return receipt requested.<br />
Dated in Kansas City, Kansas on this 18th day of August 20<strong>08</strong>.<br />
s/ David J. Waxse<br />
David J. Waxse<br />
U.S. Magistrate Judge<br />
cc:<br />
All counsel and pro se parties<br />
2<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5665
DJW/bh<br />
IN THE UNITED STATES DISTRICT COURT<br />
FOR THE DISTRICT OF KANSAS<br />
SAMUEL K. LIPARI,<br />
v.<br />
U.S. BANCORP, N.A., et al.,<br />
Plaintiff,<br />
Defendants.<br />
ORDER<br />
CIVIL ACTION<br />
No. 07-2146-CM-DJW<br />
On July 22, 20<strong>08</strong>, the Court issued a Memorandum and Order (doc. 103) granting in part and<br />
denying in part Defendants’ Motion to Compel Compliance with Rule 26(a)(1) (doc. 68). In that<br />
Order, the Court directed Plaintiff, inter alia, to show cause, on or before August 13, 20<strong>08</strong>, why he<br />
should not be required to pay a portion of the reasonable attorney’s fees and expenses that<br />
Defendants incurred in making their Motion to Compel. 1 Plaintiff has filed no response to the<br />
Court’s Show Cause Order.<br />
In light of the above, the Court finds that Plaintiff should be required to pay a portion of the<br />
reasonable attorney’s fees and expenses that Defendants incurred in connection with their Motion<br />
to Compel. To aid the Court is determining the proper amount of the award, Defendants’ counsel<br />
shall file, by August 27, 20<strong>08</strong>, an affidavit itemizing the attorney’s fees and expenses that<br />
Defendants incurred in bringing their Motion to Compel, along with a pleading setting forth any<br />
argument counsel desires to make regarding the proper amount to be apportioned. Plaintiff shall<br />
1 The Court’s Order was made pursuant to Fed. R. Civ. P 37(a)(5)(C), which provides that<br />
a when a motion to compel is granted in part and denied in the party, a court may “apportion the<br />
reasonable expenses for the motion.”<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5666
have until September 10, 20<strong>08</strong> to file a response thereto. Thereafter, the Court will issue an order<br />
specifying the amount of the award and the time for payment.<br />
IT IS SO ORDERED.<br />
Dated in Kansas City, Kansas on this 18th day of August 20<strong>08</strong>.<br />
s/ David J. Waxse<br />
David J. Waxse<br />
U.S. Magistrate Judge<br />
cc:<br />
All counsel and pro se parties<br />
2<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5667
IN THE UNITED STATES COURT<br />
DISTRICT OF KANSAS<br />
SAMUEL K. LIPARI, )<br />
)<br />
Plaintiff, )<br />
)<br />
v. ) Case No. 2:07-cv-02146-CM<br />
)<br />
U.S. BANCORP and )<br />
U.S. BANK NATIONAL ASSOCIATION, )<br />
)<br />
Defendants. )<br />
28 U.S.C. § 144_AFFIDAVIT OF PREJUDICE<br />
Comes now the plaintiff Samuel K. Lipari appearing pro se and makes the following affidavit of<br />
prejudice under 28 U.S.C. § 144.<br />
The plaintiff timely calls the court’s attention to its own prejudice when the court disregarded<br />
notice filed on August 18, 20<strong>08</strong> that the appeal in this same matter or controversy has not been dismissed.<br />
The magistrate Hon. Judge Waxse has issued orders at the instruction of the trial court Hon. Judge<br />
Murguia that disregard the loss of jurisdiction by the appeal.<br />
The orders corruptly continue what was revealed by the defendants motion served at<br />
approximately 6:30 am this morning to be the court’s scheme to not rule on the defendants frivolous<br />
protective orders and to dismiss the plaintiff’s cause for interrogatories and documents that the plaintiff<br />
submitted to the defendants in discovery.<br />
The court has meanwhile demonstrated its manifest prejudice and bias against the plaintiff by Hon.<br />
Judge Waxse and Hon. Judge Murguia jointly participating in this plan with disregard to their oaths of<br />
office and duty to their own court to be fair and unbiased revealed in an order filed by the magistrate on this<br />
day sanctioning the plaintiff in participation with the defendant counsel’s extrinsic fraud over the response<br />
of the plaintiff regarding the signed agreement to provide escrow accounts in the form of emails as<br />
recognized under Missouri and Federal statute and the lie regarding the failure to provide the documents in<br />
the plaintiff’s Rule 26 disclosure.<br />
This court does not have jurisdiction over the concurrent state claims filed in the State of Missouri<br />
that were in error removed and transferred to this court.<br />
The court was given notice it had irrefutably lost jurisdiction when the plaintiff timely appealed<br />
the striking of the plaintiff’s Rule 59 Motion in MSCI v. Neoforma et al.<br />
1<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5668
The plaintiff has been or will be irreparably harmed by the bias and prejudice of Hon. Judge<br />
Waxse and Hon. Judge Murguia.<br />
Signature _____________________________<br />
Date_____________<br />
_________________________<br />
Notary<br />
Subscribed and sworn before me on<br />
Date_______________________<br />
My commission expires:<br />
Date_______________________<br />
Respectfully Submitted,<br />
S/ Samuel K. Lipari<br />
____________________<br />
Samuel K. Lipari<br />
297 NE Bayview<br />
Lee's Summit, MO 64064<br />
816-365-1306<br />
saml@medicalsupplychain.com<br />
Pro se<br />
CERTIFICATE OF SERVICE<br />
I certify I have sent a copy to the undersigned opposing counsel via electronic filing on 8/18/<strong>08</strong>.<br />
Mark A. Olthoff, Esq.,<br />
Jay E. Heidrick, Esq.<br />
Shughart Thomson & Kilroy, P.C.<br />
Twelve Wyandotte Plaza<br />
120 W. 12th Street<br />
Kansas City, MO 64105<br />
via email<br />
jheidrick@stklaw.com<br />
molthoff@stklaw.com<br />
ademarea@stklaw.com<br />
S/ Samuel K. Lipari<br />
____________________<br />
Samuel K. Lipari<br />
2<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5669
IN THE UNITED STATES DISTRICT COURT<br />
FOR THE DISTRICT OF KANSAS<br />
SAMUEL K. LIPARI, )<br />
)<br />
Plaintiff, )<br />
)<br />
v. ) Case No. 07-CV-02146-CM-DJW<br />
)<br />
U.S. BANCORP, and )<br />
)<br />
U.S. BANK NATIONAL ASSOCIATION, )<br />
)<br />
Defendants. )<br />
MOTION FOR ORDER TO SHOW CAUSE<br />
Defendants, by and through counsel Shughart Thomson & Kilroy, P.C., move this Court<br />
for an Order requiring the plaintiff to show cause why this action should not be dismissed (or<br />
other sanctions levied) under Rule 37(b)(2)(A) for his failure to comply with the Court’s July 8,<br />
20<strong>08</strong> discovery Order. In support of this Motion, defendants state as follows:<br />
1. On July 8, 20<strong>08</strong>, the Court ordered plaintiff, within 14 days of the Order, to serve<br />
supplemental responses to defendants’ First Interrogatories Nos. 1, 3, 5-14, 16, 17 and 21; and to<br />
produce all documents responsive to defendants’ First Request for Production. The Court also<br />
ordered the plaintiff, within 21 days of the Order, to show cause why he should not be required<br />
to pay the reasonable fees and expenses the defendants incurred for their Motion to Compel.<br />
See, Memorandum and Order, Doc. # 96.<br />
2. On July 10, 20<strong>08</strong>, plaintiff filed an Objection to Magistrate’s Order, asking for<br />
District Court review of the July 8, 20<strong>08</strong> Order. See, Doc. # 97. But the plaintiff did not seek to<br />
stay the Order under D. Kan. Rule 72.1.4(d).<br />
3. Simply filing an Objection to Magistrate’s Order does not relieve a party’s<br />
obligation to comply with the order, absent an Order to Stay under D. Kan. Rule 72. See, Kelly<br />
236<strong>08</strong>76.01<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5670
v. Market USA, 2003 WL 21<strong>08</strong>9075, *2 (D. Kan. 2003) (holding that pro se plaintiff’s refusal to<br />
comply with the magistrate’s order to produce discovery was unexcused even though the<br />
plaintiff had filed an objection to the order). A copy of the Kelly decision is attached as Exhibit<br />
A.<br />
4. The plaintiff has not produced any documents or supplemental responses in<br />
accordance with the Court’s Order, and has also failed to respond to the Court’s Show Cause<br />
Order.<br />
5. Rule 37(b)(2)(A) states that if a party fails to comply with a court’s discovery<br />
order, the court may levy sanctions on the party, including dismissal of the action. Because the<br />
plaintiff has failed to comply with the July 8, 20<strong>08</strong> Order, the defendants request the Court order<br />
the plaintiff to show cause why this matter should not be dismissed or other sanctions issued<br />
pursuant to Rule 37(b)(2)(A).<br />
WHEREFORE, the above stated reasons, the defendants request the Court issue an Order<br />
requiring the plaintiff to show cause as to why this matter should not be dismissed or other<br />
sanctions issued against the plaintiff for his failure to comply with the Court’s July 8, 20<strong>08</strong><br />
Order. Defendants also request all other relief to which they are justly entitled.<br />
Respectfully submitted,<br />
/s/ Jay E. Heidrick<br />
ANDREW M. DeMAREA KS #16141<br />
JAY E. HEIDRICK KS #20770<br />
SHUGHART THOMSON & KILROY, P.C.<br />
32 Corporate Woods, Suite 1100<br />
9225 Indian Creek Parkway<br />
Overland Park, Kansas 66210<br />
(913) 451-3355<br />
(913) 451-3361 (FAX)<br />
236<strong>08</strong>76.01<br />
2<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5671
MARK A. OLTHOFF KS # 70339<br />
SHUGHART THOMSON & KILROY, P.C.<br />
1700 Twelve Wyandotte Plaza<br />
120 W 12th Street<br />
Kansas City, Missouri 64105-1929<br />
(816) 421-3355<br />
(816) 374-0509 (FAX)<br />
ATTORNEYS FOR DEFENDANTS<br />
U.S. BANCORP and U.S. BANK NATIONAL<br />
ASSOCIATION<br />
CERTIFICATE OF SERVICE<br />
I hereby certify that a copy of the above and foregoing document was filed electronically<br />
with the above-captioned court, with notice of case activity to be generated and sent<br />
electronically by the Clerk of said court (with a copy to be e-mailed to any individuals who do<br />
not receive electronic notice from the Clerk) this 20th day of August, 20<strong>08</strong>, to:<br />
Mr. Samuel K. Lipari<br />
297 NE Bayview<br />
Lee’s Summit, MO 64064<br />
/s/ Jay E. Heidrick<br />
Attorney for Defendants<br />
236<strong>08</strong>76.01<br />
3<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5672
Exhibit A<br />
Not Reported in F.Supp.2d Page 1<br />
Not Reported in F.Supp.2d, 2003 WL 21<strong>08</strong>9075 (D.Kan.)<br />
Kelly v. Market USA<br />
D.Kan.,2003.<br />
Only the Westlaw citation is currently available.<br />
United States District Court,D. Kansas.<br />
Lawrence L. KELLY, Plaintiff,<br />
v.<br />
MARKET USA, Defendant.<br />
No. 01-4169-SAC.<br />
April 11, 2003.<br />
Laurie E. Leader, Chicago-Kent Law Offices,<br />
Chicago, IL, Benoit M.J. Swinnen, Topeka, KS,<br />
James L. Wisler, James L. Wisler Law Offices,<br />
Lawrence, KS, for Defendant.<br />
MEMORANDUM AND ORDER<br />
SAM A. CROW, District Senior Judge.<br />
*1 This case comes before the court on plaintiff's<br />
objections to a magistrate judge's order regarding<br />
discovery (Dk.59), a magistrate judge's subsequent<br />
report and recommendation (Dk.67) and plaintiff's<br />
objection to that report and recommendation.<br />
(Dk.70).<br />
The factual background of this case is accurately set<br />
forth in the magistrate judge's subsequent report and<br />
recommendation (Dk.67), and will not be repeated<br />
herein. Suffice it to say that plaintiff, having been<br />
ordered to comply with outstanding discovery<br />
requests by defendant, refused to do so. Defendant<br />
then moved to dismiss the case as a sanction for<br />
plaintiff's discovery abuse. In his report and<br />
recommendation, the magistrate judge found the<br />
extreme sanction of dismissal warranted, in the event<br />
this court finds no error in the original order requiring<br />
plaintiff to comply with the outstanding discovery<br />
requests.<br />
Standard of Review<br />
“De novo review is statutorily and constitutionally<br />
required when written objections to a magistrate's<br />
report are timely filed with the district<br />
court.”Summers v. State of Utah, 927 F.2d 1165,<br />
1167 (10th Cir.1991) (citations omitted).Rule 72(b)<br />
of the Federal Rules of Civil Procedure requires a<br />
district judge to “make a de novo determination upon<br />
the record, ..., of any portion of the magistrate judge's<br />
disposition to which specific written objection has<br />
been made in accordance with this rule.”Those parts<br />
of the report and recommendation to which there has<br />
been no objection are taken as true and judged on the<br />
applicable law. See Campbell v. United States<br />
District Court for the Northern Dist. of California,<br />
501 F.2d 196, 206 (9th Cir.), cert. denied,419 U.S.<br />
879 (1974); see also Summers v. Utah, 927 F.2d at<br />
1167 (holding that “[i]n the absence of timely<br />
objection, the district court may review a magistrate's<br />
report under any standard it deems appropriate”). The<br />
district court has considerable judicial discretion in<br />
choosing what reliance to place on the magistrate<br />
judge's findings and recommendations. See Andrews<br />
v. Deland, 943 F.2d 1162, 1170 (10th Cir.1991)<br />
(citing United States v. Raddatz, 447 U.S. 667<br />
(1980)), cert. denied,502 U.S. 1110 (1992). When<br />
review is de novo, the district court is “ ‘free to<br />
follow ... or wholly ... ignore’ “ the magistrate judge's<br />
recommendation, but it “ ‘should make an<br />
independent determination of the issues' “ without<br />
giving “ ‘any special weight to the prior’ “<br />
recommendation.Andrews v. Deland, 943 F.2d at<br />
1170 (quoting Ocelot Oil Corp. v. Sparrow<br />
Industries, 847 F.2d 1458, 1464 (10th Cir.1988)). In<br />
short, the district court may accept, reject, or modify<br />
the magistrate judge's findings, or recommit the<br />
matter to the magistrate with instructions. See28<br />
U.S.C. § 636(b)(1)(C) (1994).<br />
Analysis<br />
Plaintiff's objections to the magistrate judge's report<br />
and recommendation are far from specific. See Dk.<br />
70 (alleging that the court has been operating<br />
“fraudulently,” that “defendant has no defense,”<br />
citing the Tenth Amendment and the Civil Rights Act<br />
of 1964.) In fact, they fail to reference the magistrate<br />
judge's report and recommendation, or any portion of,<br />
whatsoever. Had plaintiff's pleading not been<br />
captioned “plaintiff's response to report and<br />
recommendation,” the court would not have known<br />
that plaintiff's statements were in response to that<br />
document.<br />
© 20<strong>08</strong> Thomson Reuters/West. No Claim to Orig. US Gov. Works.<br />
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Not Reported in F.Supp.2d Page 2<br />
Not Reported in F.Supp.2d, 2003 WL 21<strong>08</strong>9075 (D.Kan.)<br />
*2 The court has reviewed the facts regarding the<br />
October 17, 2002 order, granting in large part<br />
defendant's motion to compel, and finds no error in<br />
that ruling. The court has reviewed plaintiff's<br />
objections to that order (Dk.59), and finds them<br />
lacking in specificity. Plaintiff's complaints that the<br />
course of discovery is “fraud,” that his “private<br />
matters are [his] private matters,” and that defendant<br />
has no right to the discovery sought are meritless.<br />
Plaintiff is a frequent litigant in this court, see Kelly<br />
v. Rogers, et. al, NO. 00-4175-RDR, Order of Dec.<br />
11, 2001, at 1, n. 1, and is bound to abide by the same<br />
procedural rules as are litigants represented by<br />
counsel. As this court recently stated in another case,<br />
a pro se litigant is required to follow the same rules<br />
of procedure as any other litigant.<br />
“A pro se litigant's pleadings are to be construed<br />
liberally and held to a less stringent standard than<br />
formal pleadings drafted by lawyers.”Hall v.<br />
Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). A pro<br />
se litigant, however, is not relieved from following<br />
the same rules of procedure as any other<br />
litigant.Ogden v. San Juan County, 32 F.3d 452, 455<br />
(10th Cir.1994), cert. denied,513 U.S. 1090<br />
(1995).“At the same time, we do not believe it is the<br />
proper function of the district court to assume the role<br />
of advocate for the pro se litigant.”Hall v. Bellmon,<br />
935 F.2d at 1110;see Drake v. City of Fort Collins,<br />
927 F.2d 1156, 1159 (10th Cir.1991) (“Despite<br />
liberal construction afforded pro se pleadings, the<br />
court will not construct arguments or theories for the<br />
plaintiff in the absence of any discussion of those<br />
issues”). Nor is the court to “supply additional factual<br />
allegations to round out a plaintiff's<br />
complaint.”Whitney v. State of New Mexico, 113 F.3d<br />
1170, 1173-74 (10th Cir.1997).<br />
McCormick v. Farrar, 2002 WL 31314681, *2<br />
(D.Kan.2002).<br />
Plaintiff was ordered to produce and respond to<br />
discovery, yet failed to do so. Plaintiff was not<br />
relieved from complying with the disputed order<br />
merely because he had filed an objection to it,<br />
seeFed.R.Civ.P. 72; D. Kan. R. 72.1.4, and made no<br />
application for a stay of the magistrate's nondispositive<br />
order regarding discovery. Plaintiff's<br />
failure to comply with the terms of the order is<br />
unexcused. Accordingly, plaintiff's objections to the<br />
magistrate judge's order of October 17, 2002 (Dk.59)<br />
are overruled. Plaintiff was properly ordered to<br />
respond to defendant's discovery requests, and has<br />
failed without good cause to do so.<br />
The court thus addresses the issue whether the<br />
sanction of dismissal with prejudice is warranted, as<br />
addressed in the magistrate judge's report and<br />
recommendation (Dk.67), and plaintiff's objection to<br />
that document (Dk.70).<br />
In all respects, the magistrate judge's report and<br />
recommendation fully, fairly and accurately sets forth<br />
the law, findings and facts relevant to this appeal.<br />
Plaintiff has intentionally chosen to ignore discovery<br />
requests and orders related to them, prejudicing the<br />
defendant and preventing the orderly administration<br />
of justice. For all the reasons set forth in detail in the<br />
report and recommendation, this court finds it<br />
appropriate to levy the most severe sanction of<br />
dismissal with prejudice, unless plaintiff provides to<br />
defendant within 15 days of this order all discovery<br />
which was the subject of the October 17, 2002 order.<br />
Accordingly, the court accepts and adopts the report<br />
and recommendation of the magistrate judge dated<br />
February 19, 2003.<br />
*3 IT IS THEREFORE ORDERED that plaintiff's<br />
objections to a magistrate judge's order regarding<br />
discovery (Dk.59) are overruled, that plaintiff's<br />
objection (Dk.70) to the report and recommendation<br />
of Magistrate Judge Bostwick is overruled, that the<br />
report and recommendation (Dk.67) is accepted and<br />
adopted.<br />
IT IS FURTHER ORDERED that plaintiff shall<br />
provide to defendant and to Magistrate Judge<br />
Sebelius, to whom this case has been transferred,<br />
within 15 days of this order all discovery which was<br />
the subject of the October 17, 2002 order. In the<br />
event plaintiff fails to do so in the determination of<br />
Magistrate Judge Sebelius, this case shall be<br />
dismissed, with prejudice, instanter, and without<br />
further notice or hearing.<br />
D.Kan.,2003.<br />
Kelly v. Market USA<br />
Not Reported in F.Supp.2d, 2003 WL 21<strong>08</strong>9075<br />
(D.Kan.)<br />
END OF DOCUMENT<br />
© 20<strong>08</strong> Thomson Reuters/West. No Claim to Orig. US Gov. Works.<br />
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Not Reported in F.Supp.2d Page 3<br />
Not Reported in F.Supp.2d, 2003 WL 21<strong>08</strong>9075 (D.Kan.)<br />
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<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5675
DJW/bh<br />
IN THE UNITED STATES DISTRICT COURT<br />
FOR THE DISTRICT OF KANSAS<br />
SAMUEL K. LIPARI,<br />
v.<br />
U.S. BANCORP, N.A., et al.,<br />
Plaintiff,<br />
Defendants.<br />
CIVIL ACTION<br />
No. 07-2146-CM-DJW<br />
SECOND NOTICE AND ORDER TO SHOW CAUSE<br />
TO THE PLAINTIFF SAMUEL K. LIPARI:<br />
This case is before the Court on Defendants’ Motion for Order to Show cause (doc. 118)<br />
relating to Plaintiff’s failure to comply with the Court’s July 8, 20<strong>08</strong> discovery order (doc. 96). The<br />
case is also before the Court based on information the parties have provided the Court via e-mail<br />
regarding preparation of the parties’ proposed pretrial order.<br />
I. Defendants’ Motion for Order to Show Cause Based on Plaintiff’s Failure to Comply<br />
with the Court’s July 8, 20<strong>08</strong> Order<br />
Defendants move the Court for an order directing Plaintiff to show cause why this action<br />
should not be dismissed, or other sanctions imposed, based on Plaintiff’s asserted failure to comply<br />
with a discovery order issued by the Court on July 8, 20<strong>08</strong> (doc. 96). In that Order, the Court<br />
granted Defendants’ Motion to Compel and directed Plaintiff to (1) serve supplemental responses<br />
to certain of Defendants’ First Interrogatories, and (2) produce all documents responsive to<br />
Defendants’ First Request for Production. On July 10, 20<strong>08</strong>, Plaintiff filed an Objection to the Order<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5676
(doc. 97), asking the District Judge to review the July 8, 20<strong>08</strong> Order. Plaintiff, however, filed no<br />
motion to stay the Order pursuant to D. Kan. Rule 72.1.4(d). 1<br />
As Defendants point out, the mere filing of an objection to a Magistrate Judge’s order,<br />
without applying for a stay, does not relieve a party of the obligation to comply with the order. 2<br />
Thus, in this case, Plaintiff was not relieved of the obligation to comply with the Court’s July 8,<br />
20<strong>08</strong> Order. Pursuant to Federal Rule of Civil Procedure 37(b)(2)(A), a court may impose a variety<br />
of sanctions against a party for failing to obey a discovery order, including dismissing the action in<br />
whole or in part. 3<br />
The Court finds that Defendants’ Motion for Order to Show Cause is well taken. The Court<br />
therefore grants Defendants’ Motion and directs Plaintiff to show cause to the District Judge, in a<br />
pleading filed by September 8, 20<strong>08</strong>, why this case should not be dismissed with prejudice, or other<br />
sanctions imposed, pursuant to Federal Rule of Civil Procedure 37(b)(2)(A), for failure to comply<br />
with the Court’s July 8, 20<strong>08</strong> Order regarding discovery.<br />
II.<br />
Failure to Participate in the Preparation of a Joint Proposed Pretrial Order<br />
The pretrial conference is presently scheduled for August 28, 20<strong>08</strong>. The parties were<br />
directed to prepare a joint proposed pretrial order for submission to the Magistrate Judge by August<br />
1 D. Kan. Rule 72.1.4(d) provides that “[a]pplication for stay of a magistrate judge’s order<br />
pending review of objections made thereto shall first be made to the magistrate judge.”<br />
2 See Kelly v. Market USA, No. 01-4169-SAC, 2003 WL 21<strong>08</strong>9075, at *2 (D. Kan. Apr. 11,<br />
2003) (“Plaintiff was ordered to produce and respond to discovery, yet failed to do so. Plaintiff was<br />
not relieved from complying with the disputed order merely because he had filed an objection to it<br />
. . ., and made no application for a stay of the magistrate’s non-dispositive order regarding discovery.<br />
Plaintiff’s failure to comply with the terms of the order is unexcused.”) (citations omitted).<br />
3<br />
See Fed. R. Civ. P. 37(b)(2)(A)(v).<br />
2<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5677
21, 20<strong>08</strong>. 4 On August 21, 20<strong>08</strong>, Defendants’ counsel informed the Court via e-mail that Plaintiff<br />
had failed to participate in the preparation of a joint proposed pretrial order. Defendants’ counsel<br />
stated that they had repeatedly submitted a draft pretrial order to Plaintiff and sought his input as<br />
required by local rule. Counsel reported that despite their efforts, they had not received any<br />
comments or input from Plaintiff as to the proposed order. As a result, Defendants could only<br />
submit their version of a proposed pretrial order with the following sections left blank: Plaintiff’s<br />
factual contentions, Plaintiff’s theories of recovery, essential elements of Plaintiff’s theories of<br />
recovery, and Plaintiff’s damages.<br />
Plaintiff subsequently e-mailed the Court with his own version of the proposed pretrial order,<br />
which he admitted is incomplete. Plaintiff explained in his e-mail as follows:<br />
Attached is my version of the pretrial order. It is incomplete because this court lost<br />
jurisdiction at the filing of the notice of appeal on July 11. Every subsequent order<br />
has been void. The plaintiff's notice of the lack of jurisdiction and controlling law<br />
is in the first section of the attached proposed plan.<br />
Plaintiff’s proposed pretrial order fails to include any factual contentions. It also fails to<br />
provide an itemized list of his damages, including the dollar amounts sought.<br />
Based on the above, it appears to the Court that Plaintiff has failed to satisfy his obligation<br />
to participate in the preparation of a joint proposed pretrial order. Pursuant to the Court’s July 31,<br />
20<strong>08</strong> Order, which amended the initial Scheduling Order, the parties were to prepare a “proposed<br />
joint pretrial order” 5 for submission to the Court prior to the pretrial conference. The Scheduling<br />
Order required that the proposed pretrial order be “in the form available on the court’s website<br />
4<br />
See Orders Amending Scheduling Order (doc. 1<strong>08</strong> & 109).<br />
5<br />
Order Amending Scheduling Order (doc. 1<strong>08</strong>) (emphasis added).<br />
3<br />
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(www.ksd.uscourts.gov).” 6 D. Kan. Rule 16.2(a) also requires that the parties submit “a proposed<br />
final pretrial order in the prescribed form.” 7<br />
Rule 16.2(a) explains that the parties have an obligation to confer and jointly prepare the<br />
proposed pretrial order. The Rule states:<br />
The parties have joint responsibility to attempt in good faith to formulate an agreed<br />
order which the judge can sign at the conference. If the parties disagree on any<br />
particulars, they are each to submit proposed language on the points in controversy,<br />
for the judge to rule on at the conference. To attempt in good faith to formulate an<br />
agreed order means more than mailing or faxing a form or letter to the opposing<br />
party. It requires that the parties in good faith converse, confer, compare views,<br />
consult and deliberate, or in good faith attempt to do so. 8<br />
The Court’s “prescribed form” for the proposed pretrial provides detailed instructions to the<br />
parties as to the preparation of a joint proposed pretrial order and requires that the parties make a<br />
“joint effort” to submit a single proposed order. 9 The instructions are as follows:<br />
Before the pretrial conference, the parties must confer, draft, and timely submit to<br />
the court a proposed pretrial order in accordance with the scheduling order and D.<br />
Kan. Rule 16. The proposed pretrial order is to be a joint effort of all parties. The<br />
parties have an equal obligation to cooperate fully in drafting the pretrial order and<br />
to submit an agreed order that the judge can sign at the pretrial conference. It is<br />
essential that each party’s factual contentions and legal theories be included. If the<br />
parties disagree on any particulars, they shall submit a single proposed order with<br />
bracketed notations revealing the nature of the disagreement in sufficient detail to<br />
enable the court to resolve the dispute at the conference. Submission of separate<br />
orders is not acceptable. 10 <strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5679<br />
6 Scheduling Order (doc. 50), 4.b.<br />
7 D. Kan. Rule 16.2(a).<br />
8<br />
Id.<br />
9 The form for the proposed pretrial order is found on the Court’s website at<br />
www.ksd.uscourts.gov.<br />
10<br />
See Pretrial Order Form at www.ksd.uscourts.gov (emphasis in original).<br />
4
Here, the parties have submitted separate orders, and, based on the information provided in<br />
the parties’ August 21, 20<strong>08</strong> e-mails, it appears that Plaintiff has failed to cooperate in the process<br />
of preparing a joint proposed order. If that is indeed the case, Plaintiff is subject to sanctions.<br />
Pursuant to Federal Rule of Civil Procedure 16(f), a court “may issue any just orders, including<br />
those authorized by Rule 37(b)(2)(A)(ii)-(vii)” when a party “is substantially unprepared to<br />
participate –– or does not participate in good faith –– in the [pretrial] conference” or when the party<br />
“fails to obey a scheduling order or other pretrial order.” 11 As noted above, dismissal of the case in<br />
whole or part is one of the sanctions authorized under Rule 37(b)(2)(A).<br />
In light of the foregoing, the Court directs Plaintiff to show cause, in a pleading filed by<br />
September 8, 20<strong>08</strong>, why this case should not be dismissed with prejudice, or other sanctions<br />
imposed, pursuant to Rules 16(f) and 37(b)(2)(A), based on Plaintiff’s failure to participate in the<br />
preparation of a joint proposed pretrial order.<br />
IT IS THEREFORE ORDERED that Defendants’ Motion for Order to Show Cause (doc.<br />
118) is granted.<br />
IT IS FURTHER ORDERED that Plaintiff Samuel K. Lipari is required to show cause to<br />
United States District Judge Carlos Murguia, in a pleading filed by September 8, 20<strong>08</strong>, why this<br />
case should not be dismissed with prejudice, or other sanctions imposed, pursuant to Federal Rule<br />
of Civil Procedure 37(b)(2)(A) for failure to comply with the Court’s July 8, 20<strong>08</strong> Order (doc. 96),<br />
and/or pursuant to Federal Rules of Civil Procedure 16(f) and 37(b)(2)(A) for failure to participate<br />
in the preparation of a joint proposed pretrial order.<br />
11<br />
Fed. R. Civ. P. 16(f)(1)(B) & (C).<br />
5<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5680
IT IS SO ORDERED.<br />
A copy of this Order shall be sent to Plaintiff Samuel K. Lipari by regular mail and<br />
certified mail, return receipt requested.<br />
Dated in Kansas City, Kansas on this 25th day of August 20<strong>08</strong>.<br />
s/ David J. Waxse<br />
David J. Waxse<br />
U.S. Magistrate Judge<br />
cc:<br />
All counsel and pro se parties<br />
6<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5681
IN THE UNITED STATES COURT<br />
DISTRICT OF KANSAS<br />
SAMUEL K. LIPARI, )<br />
)<br />
Plaintiff, )<br />
)<br />
v. ) Case No. 2:07-cv-02146-CM<br />
)<br />
U.S. BANCORP and )<br />
U.S. BANK NATIONAL ASSOCIATION, )<br />
)<br />
Defendants. )<br />
OBJECTION TO MAGISTRATE’S ORDERS OF 8/18/<strong>08</strong><br />
Comes now the plaintiff appearing pro se and while objecting to the jurisdiction of this court after<br />
the notice of appeal, makes the following objection to the orders dated <strong>08</strong>/18/20<strong>08</strong> requiring the plaintiff to<br />
show cause and pay fees by Magistrate Judge David J. Waxse.<br />
STATEMENT OF FACTS<br />
1. The plaintiff made a pretrial affidavit of bias on August 18, 20<strong>08</strong>.<br />
2. The Hon. Judge Carlos Murguia has not yet responded to the affidavit of bias.<br />
3. The order of <strong>08</strong>/20/20<strong>08</strong> is by Magistrate Hon. Judge David J. Waxse not the trial judge:<br />
“<strong>08</strong>/20/20<strong>08</strong><br />
117<br />
ORDER regarding 114 Notice and Order to Show Cause. The Court has reviewed Plaintiff's reply<br />
(doc. 113) to Defendants' response (doc. 111) regarding Plaintiff's asserted noncompliance with the<br />
Court's 7/22/<strong>08</strong> Order (doc. 103). Plaintiff's filing of the reply does not relieve Plaintiff of the<br />
obligation to respond to the Order to Show Cause. Plaintiff shall file his response to the Order to<br />
Show Cause on or before 8/27/<strong>08</strong>. Entered by Magistrate Judge David J. Waxse on 8/20/<strong>08</strong>. (This is<br />
a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)<br />
(mh) (Entered: <strong>08</strong>/20/20<strong>08</strong>)<br />
4. The orders were made after the plaintiff filed a Notice of Appeal in this same matter or controversy,<br />
divesting this court of jurisdiction.<br />
MEMORANDUM OF LAW<br />
The plaintiff has filed an affidavit under 28 USC § 144 over the court’s proceeding to exert<br />
jurisdiction in a biased and prejudiced manner against the plaintiff despite being given conclusive notice<br />
that the plaintiff’s appeal has not been dismissed as sought by the defendants (the plaintiff supplied the<br />
court a copy of the August 11, 20<strong>08</strong> Order of the Tenth Circuit) and this court was under the controlling<br />
1<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5682
law of this circuit deprived of jurisdiction on July 11, 20<strong>08</strong>. See Plaintiff’s Objection to Magistrate’s Order<br />
of <strong>08</strong>/20/<strong>08</strong>.<br />
The plaintiff has consistently argued that the federal court lacks jurisdiction over his concurrent<br />
state court action which was erroneously removed from the State of Missouri 16 th Circuit court on the<br />
grounds of diversity and has only the jurisdiction over these claims as pendant state law claims dismissed<br />
without prejudice in MSC v. Neoforma, Inc. Case No. 05-2299. However, this court lost jurisdiction over<br />
this matter in controversy on July 11, 20<strong>08</strong> under controlling precedent of the Tenth Circuit in United<br />
States v. Prows, 448 F.3d 1223, 1228 (10th Cir. 2006) (recognizing the general rule that a notice of appeal<br />
divests the district court of jurisdiction over substantive claims).”<br />
This court erroneously continued to exert jurisdiction but on August 11, 20<strong>08</strong> the Tenth Circuit<br />
issued an order in MSCI v Neoforma, Inc. Case No. <strong>08</strong>-<strong>3187</strong> denying dismissal of the appeal. This court’s<br />
jurisdiction under Case No. 07-CV-02146-CM-DJW as a removed state court action over 05-2299’s<br />
pendant state law claims is impacted by the special rule applicable to exclusive jurisdiction over federal<br />
antitrust claims Holmes Financial Associates, Inc. v. Resolution Trust Corp., 33 F.3d 561 (C.A.6 (Tenn.),<br />
1994) and this court will permanently lose jurisdiction 1) under the exclusive federal jurisdiction rule, 2)<br />
the reversal of the dismissal of the plaintiff’s federal and pendant claims in 05-2299, and 3) the recognition<br />
that the removal never had the required complete diversity of citizenship for 28 U.S.C. § 1332 and must be<br />
remanded under 28 U.S.C. § 1447 (c)’s requirement that “If at any time before final judgment it appears<br />
that the district court lacks subject matter jurisdiction, the case shall be remanded”.<br />
The appeal concerns whether this is the same matter in controversy as MSCI v. Neoforma et al<br />
Case No. 05-2299 and whether substantive claims related to substantive claims still included in this case<br />
over the same conduct (aspects of the issues involved in the appeal halting this court under U.S. v. Salzano,<br />
994 F.Supp. 1321 (D. Kan., 1998) ) were lawfully dismissed in light of the US Supreme Court’s<br />
overturning of the Tenth Circuit Rule 12(b)(6) standard or practice used by this court in Erickson v. Pardus,<br />
No. 06-7317 (U.S. 6/4/2007) (2007). This court’s orders subsequent to the July 11, 20<strong>08</strong> Notice of Appeal<br />
are “null and void” under Garcia v. Burlington Northern R.R. Co., 818 F.2d 713, 721 (10th Cir.1987).<br />
CONCLUSION<br />
2<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5683
Whereas the trial judge has not reviewed the plaintiff’s affidavit of prejudice or has not made an<br />
order regarding that review, under 28 USC § 144 there are no further proceedings in this court and because<br />
this court lost jurisdiction due to the notice of appeal filed on July 11, 20<strong>08</strong>, the magistrate’s orders are void<br />
for want of jurisdiction.<br />
Respectfully Submitted,<br />
S/ Samuel K. Lipari<br />
____________________<br />
Samuel K. Lipari<br />
297 NE Bayview<br />
Lee's Summit, MO 64064<br />
816-365-1306<br />
saml@medicalsupplychain.com<br />
Pro se<br />
CERTIFICATE OF SERVICE<br />
I certify I have sent a copy to the undersigned opposing counsel via electronic filing on 8/22/<strong>08</strong>.<br />
Mark A. Olthoff, Esq.,<br />
Jay E. Heidrick, Esq.<br />
Shughart Thomson & Kilroy, P.C.<br />
Twelve Wyandotte Plaza<br />
120 W. 12th Street<br />
Kansas City, MO 64105<br />
via email<br />
jheidrick@stklaw.com<br />
molthoff@stklaw.com<br />
ademarea@stklaw.com<br />
S/ Samuel K. Lipari<br />
____________________<br />
Samuel K. Lipari<br />
3<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5684
IN THE UNITED STATES COURT<br />
DISTRICT OF KANSAS<br />
SAMUEL K. LIPARI, )<br />
)<br />
Plaintiff, )<br />
)<br />
v. ) Case No. 2:07-cv-02146-CM<br />
)<br />
U.S. BANCORP and )<br />
U.S. BANK NATIONAL ASSOCIATION, )<br />
)<br />
Defendants. )<br />
OBJECTION TO MAGISTRATE’S ORDER OF 8/20/<strong>08</strong><br />
Comes now the plaintiff appearing pro se and while objecting to the jurisdiction of this court after<br />
the notice of appeal, makes the following objection to the order dated <strong>08</strong>/20/20<strong>08</strong> (Doc. 117) by Magistrate<br />
Judge David J. Waxse.<br />
STATEMENT OF FACTS<br />
1. The plaintiff made a pretrial affidavit of bias on August 18, 20<strong>08</strong>.<br />
2. The Hon. Judge Carlos Murguia has not yet responded to the affidavit of bias.<br />
3. The Chief Judge of this District Kansas District Court Judge Kathryn H. Vratil recused herself in<br />
this same matter or controversy 05-cv-02299-CM-GLR (under the matter or controversy standard in Little<br />
Rock School District v. Armstrong, No. 02-3867EA (8th Cir., 2004) ) on October 20, 2005:<br />
61 ORDER REASSIGNING CASE. Case reassigned to Judge Carlos Murguia for<br />
all further proceedings. Judge Kathryn H. Vratil no longer assigned to case.<br />
(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this<br />
entry)(ls) (Entered: 10/20/2005)<br />
5. All Kansas District court judges including the Hon. Judge Carlos Murguia recused themselves in<br />
the injunctive relief action styled Landrith v. Stanton Hazlet, KS Dist. Case No. 04-2215-DVB to prevent<br />
the defendants’ disbarment of the plaintiff’s counsel that covered the same conduct as described by the<br />
petition in 05-cv-02299-CM-GLR.<br />
6. The order of <strong>08</strong>/20/20<strong>08</strong> is by Magistrate Hon. Judge David J. Waxse and states:<br />
“<strong>08</strong>/20/20<strong>08</strong><br />
117<br />
ORDER regarding 114 Notice and Order to Show Cause. The Court has reviewed Plaintiff's reply<br />
(doc. 113) to Defendants' response (doc. 111) regarding Plaintiff's asserted noncompliance with the<br />
Court's 7/22/<strong>08</strong> Order (doc. 103). Plaintiff's filing of the reply does not relieve Plaintiff of the<br />
obligation to respond to the Order to Show Cause. Plaintiff shall file his response to the Order to<br />
Show Cause on or before 8/27/<strong>08</strong>. Entered by Magistrate Judge David J. Waxse on 8/20/<strong>08</strong>. (This is<br />
a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)<br />
1<br />
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(mh) (Entered: <strong>08</strong>/20/20<strong>08</strong>)<br />
7. The defendants’ law firm Shughart Thomson & Kilroy, P.C. had notice of the petition in Judicial<br />
Council The Tenth Circuit Case No. 20<strong>08</strong>-10-372-<strong>08</strong> describing the extrinsic fraud scheme to procure the<br />
dismissal of the plaintiff’s contract based claims through a fraudulent Motion to Compel production of<br />
documents already produced and to answer interrogatories more fully to include addresses of witnesses<br />
known to the defendants and which the plaintiff was himself seeking in discovery. See letter of disclosure<br />
to Jay E. Heidrick atch. 1 and atch 1 Part B Petition with exhibits Case No. 20<strong>08</strong>-10-372-<strong>08</strong> including exb<br />
36.<br />
“64. The defendants’ law firm is aware of the changes made in the judicial council’s treatment of<br />
judicial misconduct complaints yet they still file pleadings that contain extrinsic fraud believing the<br />
respondent will grant them.<br />
See Exb 36.<br />
65. The US Bank and US Bancorp defendants are currently arguing before the respondent in the<br />
state contract based claims case for a protective order to evade having to turn over the email contract<br />
for the escrow accounts and the written loan application that are the writings of the subject contract<br />
dispute because the documents are not “relevant.”<br />
66. While this will no doubt lead to new sanctions against the petitioner for “frivolously” arguing<br />
the writings to a written contract are relevant and discoverable the danger to justice is that the<br />
respondent will severely restrict discovery of the records related to the extrinsic fraud in the<br />
preceding litigation used by the defendants to evade their liability under contract and which is<br />
inherent in a Missouri state law breach of contract claim as a breach in the UCC duty of good faith<br />
and fair dealing.<br />
67. Because the respondent and US Bancorp defense counsel failed to research the applicable law,<br />
they thought their plan of having the federal racketeering claims over misconduct in the litigation<br />
including extrinsic fraud and depriving the petitioner of counsel dismissed would prevent the<br />
petitioner from proving their unlawful behavior.”<br />
Atch 1 Part B Petition 64-66 at pg. 19-20<br />
8. The Magistrate Hon. Judge David J. Waxse and Jay E. Heidrick were given notice that the law firm<br />
Shughart Thomson & Kilroy, P.C. was proceeding in a crime against the court and that the order to<br />
compel had been obtained through extrinsic fraud on the court. Atch, 2.<br />
9. Despite the exposure of their plan to procure dismissal of the plaintiff’s claims through extrinsic<br />
fraud, the defendants’ law firm Shughart Thomson & Kilroy, P.C. proceeded with the scheme by filing the<br />
motion at 6:30 am on 8/18/<strong>08</strong> that on its face reveals the deception and the expectation that Hon. Judge<br />
David J. Waxse will participate in the extrinsic fraud on the court, the motion faults the plaintiff for not<br />
producing the documents already served on both the magistrate and the defendants in the settlement brief<br />
and information not required in response to interrogatories including addresses unknown to the plaintiff<br />
and the pro se plaintiff’s legal theories but expressly not seeking the sanction of dismissal Shughart<br />
2<br />
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Thomson & Kilroy, P.C. had previously arranged for outside of court. See atch. 3<br />
10. Despite conclusive notice that the matter or controversy was in appeal and that this court was<br />
thereby deprived of jurisdiction, Magistrate Hon. Judge David J. Waxse participated in the extrinsic or<br />
extrajudicial fraud by ruling on the motion filed earlier that morning by the defendants. See atch. 4 Order<br />
of Magistrate Hon. Judge David J. Waxse.<br />
11. Fearing the extrinsic fraud on the court scheme had been derailed by the plaintiff’s notice that the<br />
appeal had not been dismissed and other filings of the plaintiff on 8/18/<strong>08</strong>; Shughart Thomson & Kilroy,<br />
P.C.’s attorney Jay E. Heidrick filed a redundant motion to require the plaintiff to show cause in which<br />
Heidrick unconsciously has revealed the fraud on the court used to obtain the order to compel and the<br />
order of Hon. Judge Carlos Murguia to deny the objection to Hon. Judge David J. Waxse’s order to<br />
compel production by omitting the demand for the documents Shughart Thomson & Kilroy, P.C. had<br />
already been served and which the defendants US Bank NA and US Bancorp had corruptly destroyed<br />
committing spoliation even after being noticed to preserve the electronic discovery by the plaintiff. See<br />
atch. 5. Jay E. Heidrick Motion to Require Show Cause<br />
12. The Jay E. Heidrick Motion to Require Show Cause also reveals the fraud scheme to dismiss the<br />
contract claims that depended on Magistrate Hon. Judge David J. Waxse’s participation even after<br />
receiving notice that the scheme was extrinsic fraud on the court because Shughart Thomson & Kilroy,<br />
P.C.’s motion now states the true goal of the scheme -the dismissal of the plaintiff’s contract claims as a<br />
sanction for complying with discovery, even though US Bank and US Bancorp have breached even the<br />
case management order contract and have not produced any discovery or even the documents they specify<br />
they will use in their Rule 26(a)(1) disclosure; just as the defendants have had this court repeatedly<br />
sanctioned for being correct on the law. See exb. 5. Jay E. Heidrick Motion to Require Show Cause<br />
13. Facts outside of the affidavit of prejudice are known to Magistrate Hon. Judge David J. Waxse and<br />
Hon. Judge Carlos Murguia including why the plaintiff’s concurrent state antitrust claims were dismissed<br />
without findings of law or fact by the state court Hon. Judge Manners and that like the plaintiff’s federal<br />
antitrust and racketeering claims were dismissed for not having pled elements clearly on the face of the<br />
complaint where the table of contents specified, the plaintiff’s federal racketeering claims were dismissed<br />
by the W. D. of Missouri Chief Judge Hon. Judge Feranado J. Gaitan in a temporal relationship exceeding<br />
3<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5687
that rejected in Glass v. Pfeffer, 849 F.2d 1261 at 1268 (C.A.10 (Kan.), 1988) and giving rise to the<br />
appearance of a lack of independence or extra judicial bias and prejudice by this court. See atch. 6. Notice<br />
of Appeal in Lipari v. Novation LLC and atch. 7,8 and 9 Rule 59(e) Motion and Answer Suggestions.<br />
MEMORANDUM OF LAW<br />
The plaintiff has filed an affidavit under 28 USC § 144 over the court’s proceeding to exert<br />
jurisdiction in a biased and prejudiced manner against the plaintiff despite being given conclusive notice<br />
that the plaintiff’s appeal has not been dismissed as sought by the defendants (the plaintiff supplied the<br />
court a copy of the August 11, 20<strong>08</strong> Order of the Tenth Circuit) and this court was under the controlling<br />
law of this circuit deprived of jurisdiction on July 11, 20<strong>08</strong>. See Plaintiff’s Objection to Magistrate’s Order<br />
of <strong>08</strong>/18/<strong>08</strong>.<br />
The affidavit was irrefutably timely being before the term in which the case is to be heard and on<br />
the same day that the plaintiff acquired conclusive evidence requiring recusal of the District Court judge<br />
court.<br />
The District Court Judge Hon. Judge Carlos Murguia,( not Magistrate Hon. Judge David J.<br />
Waxse) is required to determine whether the affidavit is sufficient. The judge against whom an affidavit<br />
under § 144 is filed must pass upon the legal sufficiency of the facts alleged. Green v. Murphy, 259 F.2d<br />
591, 593 (3 Cir. 1958). Because Hon. Judge Carlos Murguia is required to examine the circumstances and<br />
information beyond the affidavit and that information which is known to Hon. Judge Carlos Murguia alone,<br />
the affidavit has not yet been ruled on:<br />
“1 The Ninth Circuit in United States v. Sibla, 624 F.2d 864, 868 (9th Cir. 1980), outlined the<br />
procedures for recusal of a federal judge. The court explained that a motion brought under Sec.<br />
144 will raise a question concerning recusal under Sec. 455(b)(1) as well; the test for personal<br />
bias or prejudice is the same in both. Sec. 455 modifies Sec. 144 in requiring the judge to go<br />
beyond the Sec. 144 affidavit and consider the merits of the motion pursuant to Sec. 455(a)<br />
and (b)(1). [Emphasis added]”<br />
Gerald v. Duckworth, 46 F.3d 1133 at fn 1 (C.A.7 (Ind.), 1994).<br />
Section 144 requires that where an affidavit of personal bias or prejudice is filed, the judge must<br />
cease to act in the case and proceed to determine the legal sufficiency of the affidavit. Bell v. Chandler, 569<br />
F.2d 556 at 559 (C.A.10, 1978).<br />
4<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5688
The plaintiff’s complaint, unchanged since its initial filing in Independence, Missouri gives notice<br />
to Hon. Judge Carlos Murguia of the existence 28 U.S.C. Section 455 bias.<br />
“31. No further court action occurred in the <strong>Medical</strong> <strong>Supply</strong> action until the petitioner’s<br />
counsel had been disbarred, then Kansas District Court Judge Carlos Murguia began in earnest<br />
making rulings with the visible purpose of dismissing the action for the lack of counsel and<br />
completing the removal of representation participated in by the Kansas District court and to further<br />
its adversarial interest in the petitioner’s proceeding.<br />
32. The Kansas District Court Judge Carlos Murguia dismissed the federal claims in their<br />
entirety for failure to state a claim despite the fact that the compliant was identical in elements of<br />
pleading for its claims to the complaint filed in Craftsman Limousine, Inc. vs. Ford Motor Company<br />
and American Custom Coachworks, et al, 8th Cir. 03- 1441 and 03-1554 and Judge Murguia<br />
expressly declined to exert jurisdiction over the state law based claims.<br />
33. The Kansas District court retained jurisdiction over the federal action to sanction<br />
<strong>Medical</strong> <strong>Supply</strong>’s former counsel and SAMUEL K. LIPARI for among other reasons, witnessing his<br />
counsel’s disbarment but then because of a timely motion for reconsideration ruled <strong>Medical</strong> <strong>Supply</strong><br />
<strong>Chain</strong>, Inc. would be sanctioned.”<br />
Plaintiff’s Petition at pg. 8 31-33.<br />
The significance of Hon. Judge Carlos Murguia not making rulings in the prior litigation was to<br />
facilitate the defendants’ scheme to deprive the plaintiff of counsel by preventing the discovery related to<br />
the racketeering claims over the defense counsel Shughart, Thomson & Kilroy, P.C.’s conduct to cause the<br />
plaintiff’s counsel’s disbarment as descried in detail in the later dismissed for not having required pleading<br />
elements clearly on the face of the 05-cv-02299-CM-GLR complaint.<br />
Hon. Judge Carlos Murguia has been discovered by the plaintiff on August 18, 20<strong>08</strong> to be giving<br />
the appearance of using the same tactic of not ruling on the plaintiff’s objections to the defendants’<br />
frivolous discovery protective orders as part of an extrajudicial scheme to cause the plaintiff’s contract<br />
claims to be dismissed through the extrinsic fraud of failing to produce documents already produced to the<br />
defendants and the magistrate.<br />
The extra-judicial nature of Hon. Judge Carlos Murguia’s appearance of bias and prejudice against<br />
the plaintiff and of presiding over this action without independence is the temporally related dismissal of<br />
racketeering claims by W. D. of Missouri Chief Judge Hon. Judge Feranado J. Gaitan, the judge that<br />
refused to remand the plaintiff’s state law claims despite their concurrent jurisdiction before the US Court<br />
of Appeals of the Tenth Circuit and instead transferred them to the District of Kansas. Hon. Judge Feranado<br />
J. Gaitan dismissal as detailed in atch 9 also dismisses the plaintiff’s racketeering claims for not containing<br />
elements clearly present on the face of the complaint.<br />
5<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5689
Prior Extrajudicial Source Bias<br />
The court has participated in an extrajudicial source of prejudice and bias through extrinsic fraud<br />
by the defendants to procure an order to compel production of documents already produced and addresses<br />
or legal theories in response to interrogatories. The defendants procured these orders through extrinsic<br />
fraud or fraud on the court. "…that species of fraud which does or attempts to, defile the court itself, or is a<br />
fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner<br />
its impartial task of adjudging cases that are presented for adjudication.” Great Coastal Exp., Inc. v.<br />
International Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 675 F.2d 1349 at<br />
1356 (C.A.4 (Va.), 1982) “Fraud is regarded as extrinsic or collateral where it prevents a party from<br />
having a trial or from presenting his cause of action or his defense, or induces him to withdraw a defense,<br />
or operates upon matters pertaining not to the judgment itself, but to the manner in which it was procured.”<br />
Muncrief v. Mobil Oil Company, 421 F.2d 801 at fn 2 (10th Cir., 1970). Kansas courts have defined<br />
extrinsic fraud as "some act or conduct of the prevailing party which has prevented a fair submission of the<br />
controversy." Hood v. Hood, 335 F.2d 585 at 591 (10th Cir., 1964).<br />
The procurement of the order to compel was “fraud extrinsic to the matters tried and determined<br />
by the other court and which caused the court to render a wrong judgment, such as the successful party<br />
through fraud or deception preventing the unsuccessful from presenting his case " described in Johnson v.<br />
First National Bank in Wichita, Kansas, 223 F.2d 31 at 34 (10th Cir., 1955).<br />
In Knapp v. Kinsey, 232 F.2d 458, 465 (6th Cir.), cert. denied, 352 U.S. 892, 77 S.Ct. 131, 1<br />
L.Ed.2d 86 (1956), reversing a lower court because of bias appearing during the trial, the court recognized<br />
the 'close analogy' between bias developed during trial, which requires reversal, and bias evident prior to<br />
trial, which requires disqualification under Section 144. The critical formulation of bias sufficient to<br />
reverse was forcefully expressed by the court:<br />
“Whether unconsciously or otherwise, (the trial judge) failed from the start of the trial to view<br />
this case with the impartiality between litigants that the defendants were entitled to receive. His<br />
active participation in the case and in the questioning of witnesses exceeded what was reasonably<br />
necessary to obtain a clear understanding of what their testimony was and fully justifies appellants'<br />
complaint that at times 'he, figuratively speaking, stepped down from the bench to assume the role<br />
of advocate for the plaintiff.' Although appellees' counsel did not ask or need such assistance, and<br />
apparently at times realized the possible prejudice to their cause, the prejudicial effect to appellants'<br />
rights requires a reversal of the judgment.<br />
Id. at 467.<br />
6<br />
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Where such advocatory bias 'exist(s) before the trial it furnishes the basis for disqualification of<br />
the judge to conduct the trial. Section 144, Title 28, U.S. Code.' Id. at 465. Especially from a due process<br />
perspective, it seems clear that the 'judicial proceeding' rule can extend no further than is necessary to<br />
preserve the functional ability of the courts to try cases. Mitchell v. Sirica, 502 F.2d 375 (C.A.D.C., 1974)<br />
A favorable or unfavorable predisposition can also deserve to be characterized as "bias" or<br />
"prejudice" because, even though it springs from the facts adduced or the events occurring at trial, it is so<br />
extreme as to display clear inability to render fair judgment. (That explains what some courts have called<br />
the "pervasive bias" exception to the "extrajudicial source" doctrine. See, e. g., Davis v. Board of School<br />
Comm'rs of Mobile County, 517 F. 2d 1044, 1051 (CA5 1975), cert. denied, 425 U. S. 944 (1976).).<br />
CONCLUSION<br />
Whereas the trial judge has not reviewed the plaintiff’s affidavit of prejudice or has not made an<br />
order regarding that review, under 28 USC § 144 there are no further proceedings in this court and because<br />
this court lost jurisdiction due to the notice of appeal filed on July 11, 20<strong>08</strong>, the magistrate’s order is void<br />
for want of jurisdiction.<br />
Respectfully Submitted,<br />
S/ Samuel K. Lipari<br />
____________________<br />
Samuel K. Lipari<br />
297 NE Bayview<br />
Lee's Summit, MO 64064<br />
816-365-1306<br />
saml@medicalsupplychain.com<br />
Pro se<br />
CERTIFICATE OF SERVICE<br />
I certify I have sent a copy to the undersigned opposing counsel via electronic filing on 8/22/<strong>08</strong>.<br />
Mark A. Olthoff, Esq.,<br />
Jay E. Heidrick, Esq.<br />
Shughart Thomson & Kilroy, P.C.<br />
Twelve Wyandotte Plaza<br />
120 W. 12th Street<br />
Kansas City, MO 64105<br />
via email<br />
jheidrick@stklaw.com<br />
7<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5691
molthoff@stklaw.com<br />
ademarea@stklaw.com<br />
S/ Samuel K. Lipari<br />
____________________<br />
Samuel K. Lipari<br />
Attachments:<br />
Atch 1 email to Shughart Thomson Kilroy Disclosing Petition<br />
Atch 1 Part A Judicial Ethics Complaint<br />
Atch 1 Part B Petition<br />
Atch 1 Part C Exhibits<br />
Atch 1 Part D Exhibits 2<br />
Atch 2 Letter of July-22-<strong>08</strong><br />
Atch 2 Exb 1 02-3443 Order <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. v. US Bancorp, NA.<br />
Atch 2 Exb. 2 Authority for investgation research<br />
Atch 3 Response to Show Cause Order<br />
Atch 4 Order to Show Cause<br />
Atch 5 Lipari Motion For Order To Show Cause<br />
Atch 6 Missouri Notice of Appeal<br />
Atch 7 Lipari v GE Rule 59(e) Motion<br />
Atch 8 Lipari Rule 59(e) Reply Suggestion<br />
Atch 9 Reply Suggestion to Seyfarth Shaw<br />
8<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5692
Date: February, 1 st 20<strong>08</strong><br />
Office of the Circuit Executive<br />
United States Tenth Circuit<br />
Byron White United States Courthouse<br />
1823 Stout Street<br />
Denver, Colorado 80257<br />
Re: Judicial Ethics Complaint against US District for Kansas Court Judge Carlos Murguia<br />
Dear Honorable Chief Judge Deanell Reece Tacha<br />
I am making a judicial ethics complaint against US District for Kansas Court Judge Carlos<br />
Murguia and his conduct in the following cases: <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. v. US Bancorp, NA et al KS.<br />
Dist. Case No. 02-2539; <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. v. General Electric Company, et al.,<br />
case number 03-2324-CM, <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. v Novation, et al; KS Dist. Court Case No.: 05-2299<br />
(Formerly W.D. MO. Case No. 05-0210);<br />
I am forced to make this complaint against my litigation interests and risk the certain retribution<br />
despite the recent US History of judges not being disciplined regardless of the seriousness of their<br />
offenses. 1 The reason I am forced to make this complaint is the urgency that the misconduct is continuing<br />
and threatens my property and has prevented me from incorporating and for all practical purposes, from<br />
ever entering the market for hospital supplies. I was stopped from obtaining a case management hearing in<br />
2002 in the matter that I am still litigating today, just before I was to meet with the Hon. Magistrate Waxse.<br />
The discoverable and public documents clearly and conclusively prove my claims. A known fact that seems<br />
to necessitate repeated dismissals before discovery commences. I finally got to the January, 20<strong>08</strong> case<br />
management hearing and Hon. Magistrate Waxse set a schedule including a timetable for dispositive<br />
motions that the parties mutually agreed to.<br />
While working on the next exhaustive task of documenting my damages and the controlling case<br />
law governing discovery, Judge Carlos Murguia issued a minute order having the effect of over ruling the<br />
case management order and did so by a minute entry with no document, having the effect of giving me no<br />
notice of the accelerated deadline.<br />
As the party experiencing the repeated prejudice and misconduct of US District for Kansas Court<br />
Judge Carlos Murguia I am fully aware of what would have happened to my chances of ever entering the<br />
market to compete with Novation LLC and lower hospital supply costs and all I have ever worked for if I<br />
had missed the stealth deadline.<br />
Each time I have had my claims dismissed based on facially false and readily discernable<br />
misrepresentations about the contents of my pleadings. This has been coupled with decisions on law<br />
directly contradicting controlling authority or adopting the defendants’ false legal argument grounded in the<br />
misrepresentation of whether words stating elements are in my complaints. Each time I have sought<br />
rehearings, pointing out the clear error of contradicting US Supreme Court authority on the precise issue or<br />
demonstrating that a federal statute or public law expressly states language for a private right of action,<br />
Judge Carlos Murguia has denied them. Judge Carlos Murguia has also denied me opportunities to correct<br />
any deficiencies in my claims.<br />
Any prejudice against me or my claims by Judge Carlos Murguia cannot be based on an objective<br />
view of the law or the economic conditions resulting from restraint of trade in the market for hospital<br />
1 http://writ.news.findlaw.com/dean/2004<strong>08</strong>13.html<br />
Atch 1 Part A Judicial Ethics Complaint<br />
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supplies. Similarly, the defendant banking conglomerate US Bancorp has lost evidentiary hearings, been<br />
fined and settled with the New York Attorney General and the Securities and Exchange Commission for<br />
their conduct in extorting new healthcare technology companies to the hospital supply marketplace<br />
controlled by Novation LLC and for conduct in the capitalization of my competitor Neoforma, Inc. If Judge<br />
Carlos Murguia is acting on ex parte information from the law firms representing the defendants, their<br />
pleadings reveal a complete absence of knowledge of the crisis preventing Americans from receiving<br />
healthcare through artificial inflation and restraint of trade. The nation and even the defendants are being<br />
harmed by Judge Carlos Murguia’s lack of impartiality.<br />
I have sought judicial review of Judge Carlos Murguia’s misconduct through appeal in <strong>Medical</strong><br />
<strong>Supply</strong> <strong>Chain</strong>, Inc. v. US Bancorp, NA et al 10th Cir. Case No.: 02-3443; <strong>Medical</strong><br />
<strong>Supply</strong> <strong>Chain</strong>, Inc. v. General Electric Company, et al. No. 04-3075 and 04-3102 (10th Cir.) and <strong>Medical</strong><br />
<strong>Supply</strong> <strong>Chain</strong>, Inc. v. US Bancorp, NA et al 10th Cir. Case No.: 03-3342; 06- 3331. This has been frustrated<br />
by back channel communications fostered in Judge Carlos Murguia’s office that prejudice me and everyone<br />
associated with helping me in the eyes of the Tenth Circuit Court of Appeals and other courts. The most<br />
recent appeal decisively showed Judge Carlos Murguia’s error on every point sustaining his ruling and the<br />
statement of facts documented the blatantly false claims the required pleading elements were not stated<br />
clearly in my complaint. See Applt Br at pages 19-31, Applee Br.: 2 , 3<br />
The notice of appeal was not timely. My former counsel Bret D. Landrith never missed deadlines,<br />
only the defense counsel. I depended on his research and willingness to take my action on contingency as<br />
Congressional policy provided for. It became essential to the opposing law firms to have him prevented<br />
from helping me. My former counsel was disbarred over the ex parte communications to the Kansas state<br />
disciplinary authority fostered by Judge Carlos Murguia and reciprocally disbarred after by Judge Carlos<br />
Murguia vehement dismissal with sanctions of <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. v Novation, et al; KS Dist.<br />
Court Case No.: 05-2299 (Formerly W.D. MO. Case No. 05-0210) and threats to sanction me or my<br />
counsel for seeking reconsideration. The past unwillingness of the Tenth Circuit to exercise judicial review<br />
and the financial sanctions being issued for correctly stating the law made it very dangerous for Dennis<br />
Hawver and impossible to find replacement counsel.<br />
Shortly after the appeal was rejected, the national news covered the hospital supply restraint of<br />
trade problem. In "Blowing the Whistle, Many Times" The New York Times Cynthia Fitzgerald By Mary<br />
Williams Walsh, November 18, 2007 described hundreds of millions of dollars lost from Medicare by the<br />
misconduct. 4 http://www.nytimes.com/2007/11/18/business/18whistle.html. I have maintained the<br />
documentary evidence that is the basis for my claims in the above litigation online at<br />
http://www.medicalsupplychain.com/news.htm and includes four years of US Senate Judiciary Committee<br />
testimony on the restraint of trade I have raised in my complaint and the conduct of Novation LLC in<br />
keeping healthcare technology companies from being capitalized.<br />
The national interest and lives lost from increasing and unaffordable healthcare resulting in the<br />
lack of competition in hospital supplies has made Judge Carlos Murguia’s dereliction of his duty<br />
horrifically egregious. Not only I and the legal counsel and other business associates been injured but so<br />
have the defendants, some of which are publicly traded corporations. Despite Judge Carlos Murguia’s<br />
willingness to rule for the defendants’ local counsel regardless of their failure to research issues or even to<br />
be honest about the documents before the court in their written pleadings, the defendant corporations still<br />
are injured by the non law based outcomes and are unable to change their chargeable conduct and the avoid<br />
the consequences. Most of all, the integrity of the Kansas District Court and the people of the United States<br />
who provide for civil enforcement through the courts of Congresses laws against restraint of trade.<br />
I realize this begins a long road, first to the circuit Judicial Council’s likely unwillingness to<br />
investigate this complaint, then to the Judicial Conference. Afterwards, without relief I will be forced to<br />
then seek redress in the legislature and finally through popular sovereignty in changing the policy that<br />
2 http://www.medicalsupplychain.com/pdf/Novation%20Appeal%20Brief.pdf<br />
3 http://www.medicalsupplychain.com/pdf/Novation%20&%20US%20Bank%20Reply%20Brief.pdf<br />
4 http://www.nytimes.com/2007/11/18/business/18whistle.html.<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5694
permitted the repeated outcomes here that are contrary to fact and law. I know the Kansas District court and<br />
practitioners will wish me success. All of whom are hurt by the overt ness of Judge Carlos Murguia’s<br />
repeated misconduct and whom value our court system and its role in vindicating our national policies.<br />
I stand ready to provide all documentation and testimony any and every investigation of these<br />
events may require.<br />
Sincerely,<br />
Samuel K. Lipari<br />
Samuel Lipari<br />
<strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong><br />
297 NE Bayview<br />
Lee's Summit, MO 64064<br />
Phone: 816.365.1306<br />
Saml@<strong>Medical</strong><strong>Supply</strong><strong>Chain</strong>.com<br />
www.<strong>Medical</strong><strong>Supply</strong><strong>Chain</strong>.com<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5695
JUDICIAL COUNCIL THE TENTH CIRCUIT<br />
UNITED STATES COURT OF APPEALS<br />
)<br />
In re Charge of Judicial Misconduct, )<br />
) Case No. 20<strong>08</strong>-10-372-<strong>08</strong><br />
)<br />
PETITION FOR REVIEW<br />
Comes now the petitioner Samuel K. Lipari and respectfully requests that<br />
this judicial council review the March 14, 20<strong>08</strong> order by the Hon. Robert H.<br />
Henry, Chief Circuit Judge dismissing the complaint against the respondent and<br />
take action to stop the continuing violations of Judicial Canons 1, 2A, 2B, 3A1,<br />
3A2, 3A3, 3A4, 3A6, 3B2, and 3B3 by the respondent.<br />
Introduction<br />
This petition seeks to review the dismissal of the judicial misconduct<br />
complaint made against the respondent for the ministerial act of withholding<br />
notice of an order that if neglected would have resulted in the petitioner’s loss of<br />
his remaining claims. The respondent has been presiding over the petitioner’s<br />
contract and pendant federal claims since 2002. The respondent’s name is omitted<br />
to permit publication of this petition.<br />
The petitioner realized his contract was breached to further the defendants’<br />
interest in the Novation LLC hospital supply cartel and first entered court through<br />
his Missouri corporation <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. appearing before the<br />
respondent to seek only prospective injunctive relief preventing the defendants<br />
1<br />
Atch 1 Part B Petition<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5696
from obstructing his entry into the hospital supply market. By breaching a<br />
contract to provide escrow accounts to the manufacturer’s representatives the<br />
petitioner had recruited for the purpose of funding the development of hospital<br />
customers, the defendants protected their underwriting of Neoforma, Inc the<br />
petitioner’s direct competitor which was openly a member of a hospital supply<br />
cartel published in securities filings as creating exclusionary long term<br />
anticompetitive contracts with more than 2500 hospitals nationwide and organized<br />
by General Electric under the leadership of Jeffry Immelt and Novation LLC, also<br />
published in securities filings.<br />
The respondent became convinced from sources other than the petitioner or<br />
any known filings that the defendants could not be liable for antitrust and the<br />
respondent began a pattern and practice of dismissing all the petitioner’s actions<br />
before discovery could commence. In the marketplace, the defendants were<br />
emboldened to commit subsequent antitrust felonies injuring consumers in the<br />
market and the petitioner.<br />
The petitioner reentered court seeking damages for the subsequent conduct<br />
violating antitrust law and for the misconduct of the defendants in committing<br />
extortion under color of official right to prevent the petitioner from being able to<br />
present his case to a jury through extrinsic fraud. The respondent again delayed<br />
and prevented discovery and delayed ruling on the petitioner’s partial summary<br />
judgment which contained the controlling law applied to evidentiary exhibits of<br />
the extortion until after the petitioner was successfully deprived of counsel, then<br />
2<br />
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the respondent ordered dismissal of all federal claims, dismissing the partial<br />
summary judgment as moot and dismissing without prejudice the petitioner’s state<br />
law claims. The order written by the respondent also sanctioned the petitioner in<br />
the complete absence of jurisdiction and sanctioned the petitioner’s former counsel<br />
despite the respondent’s prior orders excluding the petitioner and from the action.<br />
I. Statement of Facts<br />
1. The petitioner made a complaint of judicial misconduct against the<br />
respondent, a district court judge on February 1, 20<strong>08</strong>. See Exb. 1.<br />
A. Conclusive Evidence of Respondent’s Ministerial Misconduct<br />
2. The complaint identified the ministerial conduct of failing to give the<br />
petitioner notice that the response due date for the defendants’ second Rule<br />
12(b)(6) motion for dismissal had been changed in an electronic minute order<br />
without a paper copy being mailed to the pro se petitioner:<br />
“While working on the next exhaustive task of documenting my<br />
damages and the controlling case law governing discovery, Judge Carlos<br />
Murguia issued a minute order having the effect of over ruling the case<br />
management order and did so by a minute entry with no document, having<br />
the effect of giving me no notice of the accelerated deadline.”<br />
Complaint of Judicial Misconduct, pg. 1 of Exb. 1.<br />
3<br />
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3. The complaint clearly identifies the gravamen of the misconduct and the<br />
consequences that would have befallen the petitioner had he not discovered the<br />
electronic order had shortened the deadline from 4/24/20<strong>08</strong> 1 to 2/1/20<strong>08</strong>:<br />
“As the party experiencing the repeated prejudice and misconduct of US<br />
District for Kansas Court Judge Carlos Murguia I am fully aware of what<br />
would have happened to my chances of ever entering the market to compete<br />
with Novation LLC and lower hospital supply costs and all I have ever<br />
worked for if I had missed the stealth deadline.”<br />
Complaint of Judicial Misconduct, pg. 1 of Exb. 1<br />
4. After receiving an acknowledgement of the complaint, the petitioner was<br />
not contacted by the Judicial Council until receiving a cover letter (Exb. 2) and the<br />
order signed by the Hon. Robert H. Henry, Chief Circuit Judge dismissing the<br />
complaint. See Exb. 3.<br />
5. The record of the case confirms the respondent’s alteration of the parties’<br />
agreed upon schedule and the order of the Magistrate Judge. The Magistrate’s<br />
scheduling order electronically served on the defendants’ counsel and mailed to<br />
the plaintiff states: “Motions to dismiss for lack of personal jurisdiction,4/1/<strong>08</strong>”<br />
See Magistrate’s Order pg. 2 of Exb. 4.<br />
6. The respondent made an entry without a paper order:<br />
“1/24/20<strong>08</strong> 51 ORDER granting in part and denying in part 46 Motion for<br />
Extension of Time to File Response/Reply re 43 MOTION to Dismiss<br />
Pursuant to Rule 12(b)(6) and Rule 8 of the Federal Rules of Civil<br />
Procedure. Response deadline 2/1/20<strong>08</strong>. Signed by District Judge<br />
…[Respondent]… on 1/24/<strong>08</strong>.(This is a TEXT ENTRY ONLY. There is<br />
no.pdf document associated with this entry.) (js) (Entered: 01/24/20<strong>08</strong>)”<br />
1 KS. Dist. Court Local Rule 6.1(d)(2) provides 23 days to respond to dispositive<br />
motions.<br />
4<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5699
Appearance Docket of the subject litigation.<br />
7. The petitioner avoided the effect of being deprived of notice and the<br />
respondent and the judicial council are able to readily verify the petitioner’s<br />
justifiable fear on the first page of the response to the dismissal:<br />
“The plaintiff is also aware of this court’s disposition toward him and his<br />
claims embodied by the court’s January 24th, 20<strong>08</strong> decision to over rule the<br />
Magistrate Judge’s case management schedule and require this answer by<br />
February 2, 20<strong>08</strong>.<br />
An impartial observer could find that the issuance of a minute order<br />
changing the schedule without accompanying documentation could prejudice<br />
a pro se defendant excluded from the electronic case management system.<br />
The plaintiff has no doubt as to what would have been in store for his<br />
claims or his future ability to enter the hospital supply market and compete<br />
against US Bancorp’s co-conspirator Novation LLC had he not made the<br />
deadline.”<br />
Petitioner’s Response to Second Dismissal, Exb. 5<br />
B. Respondent’s Retaliatory Obstruction of Rule 60(b) Proceedings<br />
8. On March 28, 20<strong>08</strong> following the March 18 letter transmitting the<br />
Judicial Council order dismissing the judicial ethics complaint, the respondent<br />
struck the petitioner’s Rule 60(b) motion and ordered the petitioner to show<br />
cause in an electronic filing of a Word Perfect Document the respondent<br />
entitled “Lipari sanctions.” See Exb. 6 .<br />
5<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5700
(1) Causing The Kansas Clerk To Again Withhold Mailing An Order<br />
9. The respondent’s March 28 order was available as a pdf file and<br />
delivered via the court’s electronic case filing to the defendants and the Clerk of<br />
the Kansas District Court but was not mailed to the pro se petitioner (as other<br />
orders in this case and the petitioner’s Kansas District Court litigation with the<br />
exception of the 1/24/20<strong>08</strong> minute order above) who is not eligible for<br />
electronic filing.<br />
10. Like the 1/24/20<strong>08</strong> minute order, the March 28 order directed and<br />
required a response by the petitioner within a limited number of days or the<br />
petitioner would lose a significant property interest.<br />
11. The petitioner made a timely answer after accidentally discovering the<br />
order had been made. See Exb. 7<br />
(2) Complete Absence of Jurisdiction To Strike Rule 60(b) Motion<br />
12. Like the 1/24/20<strong>08</strong>, the March 28 order was contrary to the Federal<br />
Rules of Civil Procedure. The 1/24/20<strong>08</strong> order directed the petitioner to answer<br />
a second Rule 12 dismissal motion not permitted under F.R.Civ. P. Rule 12.<br />
The March 28 order struck a motion by the petitioner that was not a pleading<br />
that could be struck under Rule 12(f) as defined by Rule 7 and the controlling<br />
case law of this circuit. See Exb 7.<br />
13. The respondent’s prior dismissal order of federal claims in this action<br />
sanctions the petitioner and the petitioner’s former attorney, neither of whom<br />
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were parties to the action at the time the order was made and over whom the<br />
court had a complete absence of jurisdiction. See Exb 8.<br />
14. The respondent’s order is harshly critical of the petitioner and his former<br />
counsel expressing a complete disbelief of the petitioner’s claims and related<br />
sworn affidavit as the basis for the dismissal under Rule 12(b)(6) even though<br />
there had been no discovery in any of the petitioner’s cases and no basis to<br />
question the petitioner’s factual averments except ex parte communications<br />
with defense counsel. See Exb 8.<br />
15. The order sanctions the petitioner for bringing subsequent claims that<br />
were not precluded under the transactional approach to res judicata that is the<br />
controlling law of this circuit and are materially identical to controlling US<br />
Supreme Court antitrust cases determining similar claims were not precluded.<br />
16. When the respondent realized his order dismissing the petitioner’s now<br />
dissolved Missouri corporation and sanctioning the petitioner made the<br />
petitioner a party in the action, the respondent attempted to refute the change he<br />
had created in a second order but ended up confirming the petitioner was<br />
ultimately liable. See Exb. 9.<br />
17. The reason the petitioner was being treated with open bias and prejudice<br />
by the respondent in his orders and the verifiable reason the federal claims were<br />
dismissed (even though the required elements were clearly and concisely pled<br />
with supporting factual averments at exactly where the complaint’s table of<br />
contents indicated ) is because the petitioner had subsequent conduct claims<br />
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ased on the defendants’ misconduct in preceding litigation that included<br />
conduct the respondent witnessed and knew occurred. See Exb. 10.<br />
18. The petitioner had also filed a partial summary judgment briefing the<br />
respondent on the current state of the applicable federal law governing the<br />
petitioner’s claims on this misconduct and providing supporting evidentiary<br />
documents. See “Memorandum In Support Of First Plaintiff’s Motion For<br />
Partial Summary Judgment Under F. R. CIV. P. Local Rule 56.1”,Exb 11. And<br />
Exb 11 supporting attachments 1 thru 13.<br />
19. The conduct complained of in the complaint and documented in the<br />
motion for partial summary judgment concerned extrinsic fraud through<br />
Extortion Under Color of Official Right in depriving the petitioner of<br />
representation so that the petitioner would be forced to forfeit his claims. See<br />
Exb 10.<br />
20. The extrinsic fraud of Extortion Under Color of Official Right used to<br />
procure the decision in this case was also contained in the procedural history<br />
portion of the petitioner’s state law contract claims against US Bank and US<br />
Bancorp (see Exb. 29) filed by the petitioner in the 16 th Circuit Court of the<br />
State of Missouri at Independence, Missouri and is again before the respondent<br />
without alteration after fraudulently being removed and transferred to the<br />
respondent where he exercised jurisdiction over them while the Tenth Circuit<br />
appeal of their dismissal was proceeding and the respondent was in the<br />
complete absence of jurisdiction.<br />
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21. The petitioner had opposed transfer of the antitrust case to the<br />
respondent and made an affidavit documenting the misconduct he witnessed in<br />
the Kansas District court, including the attempted extortion to deprive him of<br />
representation, the offer of $300,000.00 cash to replace the capital US Bank and<br />
US Bancorp deprived him of if he accepted substitute counsel provided by the<br />
Kansas Disciplinary Administrator’s agent Gene E. Schroer, the warrantless<br />
wiretapping related to the USA PATRIOT Act and the false testimony under<br />
oath and the accompanying ex parte communications of the respondent’s<br />
magistrate to the Kansas state tribunal witnessed by the petitioner. See Exb 12.<br />
22. This affidavit which never was contested and which no hearing ever<br />
resulted from was referred to with disbelief by the respondent in his order<br />
granting a rule 12(b)(6) dismissal of the petitioner’s federal claims and ordering<br />
sanctions of the petitioner.<br />
23. As directed by the Tenth Circuit, the petitioner and his former counsel<br />
made a criminal complaint based on this conduct to the Kansas City, Missouri<br />
regional office of the FBI. See Exb 13.<br />
C. Respondent’s Past Obstruction of Rule 59 Proceedings<br />
24. The respondent has previously ignored clear error over controlling US<br />
Supreme Court decisions and the express grant of private rights of action by the<br />
US Congress when brought to his attention by the petitioner in timely motions for<br />
reconsideration. See Exb 14 a motion struck because the petitioner had been by the<br />
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espondent’s order deprived of the representation of Bret D. Landrith and by the<br />
threats of sanctions constructively deprived of the representation of Dennis<br />
Hawver and left unable to find replacement counsel.<br />
25. The respondent had previously failed to address the petitioner’s timely<br />
motion for reconsideration in <strong>Medical</strong> <strong>Supply</strong> I.<br />
26. The failure of the respondent to take into consideration the petitioner’s<br />
reconsiderations resulted in judgments that directly conflicted with controlling US<br />
Supreme Court and Tenth Circuit precedents and also repudiated the express<br />
language of the Congress in the USA PATRIOT Act creating private rights of<br />
action.<br />
D. Respondent’s Communications To Defeat Review<br />
27. Patrick Fisher, the former Clerk of the Tenth Circuit Court of Appeals<br />
developed a completely prejudiced view of the merits of the petitioner’s litigation<br />
despite no previous communications by the petitioner or his counsel to Mr. Fisher<br />
and no known involvement of Mr. Fisher in the hospital supply industry.<br />
28. The petitioner’s former attorney wrote Mr. Fisher a letter attempting to<br />
rectify some of the misunderstandings. See Exb. 16.<br />
29. The Tenth Circuit decided not to review the legal basis for the respondent’s<br />
<strong>Medical</strong> <strong>Supply</strong> I decision and issued an order upholding the respondent even<br />
adopting the respondent’s clear error declaration that there was no private right of<br />
action under the USA PATRIOT Act and this decision is used in the Missouri<br />
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State Court and the Western District of Missouri to repeatedly attempt to prejudice<br />
the court’s into believing any claim by the petitioner is frivolous. See Exb17.<br />
30. The petitioner in shock answered the Show Cause and circulated it to<br />
members of the US Senate Judiciary Committee he had already been in contact<br />
with concerning the difficulty of addressing the anticompetitive practices of<br />
the Novation LLC cartel (the subject of two preceding US Senate Judiciary<br />
Antitrust subcommittee hearings ) See Exb 18.<br />
31. The Tenth Circuit upheld the dismissal violating the Rule 12(b)(6) standard<br />
and overtly expressed disbelief of the petitioner’s claims as a basis for the<br />
dismissal which the Tenth Circuit has since been over ruled on but materially, the<br />
Tenth Circuit adopted the respondent’s view that the claims were not researched<br />
when in fact the complaint contained sixteen sources listed in end notes citing to<br />
investigative journalism, government and academic support for the petitioner’s<br />
claims. See Exb 19.<br />
32. The Tenth Circuit in the person of the Chief Clerk of the Tenth Circuit<br />
Court of Appeals ordered the harshest possible sanctions for a frivolous appeal<br />
despite even acknowledging the district court and the appellate panel’s error that<br />
there were indeed private rights of action under the USA PATRIOT Act but<br />
refusing to change its approval of the trial court’s adoption of the defendants straw<br />
man fraud that the complaint did not identify other legally separate hospital supply<br />
cartel co-conspirators and their agreement which was identified in SEC required<br />
filings. See Exb 20.<br />
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33. The petitioner’s brief in <strong>Medical</strong> <strong>Supply</strong> I had apprised the appellate court<br />
of the important national interest at stake in the appeal and the petitioner’s<br />
involvement of the US Senate in the issues before the Tenth Circuit Court of<br />
Appeals:<br />
After five years developing the technology, it attempted to capitalize its entry<br />
into the hospital supply market at the moment it saw hospitals were seeking<br />
alternatives to healthcare group purchasing organizations (“GPO’s”) as a<br />
result of a New York Times series exposing the harmful effects of GPO’s<br />
and a series of US Senate Judiciary Antitrust sub-committee hearings were<br />
critically reviewing the anti-kickback1 safe harbor under Medicare for<br />
GPO’s. Aplt. Apdx. v1 C 26,C En.vii and viii.<br />
The testimony related to the petitioner was even excerpted:<br />
“On July 16, 2003, the national policy debate on the appropriateness<br />
of the<br />
Medicare anti-kickback safe harbor for group purchasing convened<br />
again before the subcommittee of the Senate Committee on the Judiciary<br />
without <strong>Medical</strong> <strong>Supply</strong>’s presence as a competitor in the hospital supply<br />
marketplace:<br />
“How important is the E-Commerce monopoly to those who control<br />
it Over the past year one start-up company has been blocked twice from<br />
market entry. The first time, a bank tied to an investment house that has<br />
seventy percent of its holdings in health care suppliers refused to provide the<br />
company with simple escrow services through a blatant misapplication of the<br />
USA Patriot Act. Most recently an international conglomerate that is a<br />
founder of GHX was willing to take a $15 million dollar loss on a real estate<br />
deal just to keep this company out of the market.” Testimony Lynn James<br />
Everard, Hospital Group Purchasing: Has the Market Become More Open to<br />
Competition, United States Senate Committee on the Judiciary<br />
Subcommittee on Antitrust, Competition and Business and Consumer Rights<br />
July 16, 2003”<br />
See Exb. 21.<br />
34. The testimony described both the <strong>Medical</strong> <strong>Supply</strong> I case and the petitioner’s<br />
related case against the General Electric co-conspirators which the respondent also<br />
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dismissed, contradicting controlling law of the US Supreme Court and the Tenth<br />
Circuit Court of Appeals on whether all antitrust Sherman I antitrust conspirators<br />
need to be named as defendants (the petitioner had identified each of the coconspirators<br />
and described in detail their agreement and conduct but chose to<br />
name only those directly injuring him in furtherance of the hospital supply cartel.<br />
35. The Tenth Circuit panel’s opinion reflected the respondent’s<br />
communication of disdain and admonishment contained in the respondent’s order<br />
of dismissal.<br />
36. The day after the Tenth Circuit panel’s decision in the petitioner’s GE case,<br />
the US Supreme Court docketed the petitioner’s former attorney’s petition for<br />
certiorari of the sanctions in <strong>Medical</strong> <strong>Supply</strong> I.<br />
37. The petitioner again brought to the attention of the Tenth Circuit the<br />
respondent’s dismissal of federal claims in <strong>Medical</strong> <strong>Supply</strong> II violation of<br />
controlling US Supreme Court precedent and the express language of the US<br />
Congress in granting private rights of action under the USA PATRIOT Act in<br />
claims based on the subsequent and continuing conduct of the defendants.<br />
38. The national interest in the issues affected by the litigation had grown. US<br />
Senator Sam Brownback was met with protestors demonstrating against<br />
unaffordable healthcare costs in Topeka and ultimately withdrew from the US<br />
Presidential race despite the absence of another social conservative with<br />
experience in the House and Senate. Both the US Senator who had chaired the US<br />
Senate Judiciary Committee’s Antitrust Sub Committee hearing described above<br />
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and the US Senator from Missouri had lost their seats due to public concern over<br />
the lack of affordable healthcare:<br />
“Hon. Senator Mike DeWine, the chair of the US Senate Judiciary<br />
Committee's Antitrust Subcommittee hearing that during the fourth year of<br />
antitrust hearings on the defendant Novation’s anticompetitive conduct in the<br />
hospital supply market concluded Novation’s abuses could be better<br />
corrected with private antitrust litigation than with new legislation 95 on<br />
pg.52. Senator Mike DeWine lost his re-election on November 4, 2006. The<br />
senator from Missouri, Hon. Jim Talent also lost his seat in part because of<br />
the healthcare issue.<br />
See KC Star Buzz Blog Sept 29, 2006 CAMPAIGN AD BUZZ | McCaskill<br />
criticizes Talent on Medicaid.”<br />
See Exb. 22.<br />
39. The harsh rebuke’s of the petitioner, sanctions overtly contrary to<br />
controlling law and the threats of more sanctions if any post trial motions are made<br />
had the foreseeable effect of making it difficult for the petitioner to obtain counsel<br />
for an appeal.<br />
40. The appeal was ultimately dismissed based on timeliness.<br />
E. Respondent’s Effect on Other Litigation<br />
41. The respondent’s dismissal of <strong>Medical</strong> <strong>Supply</strong> II which included the<br />
defendants Neoforma, Inc. and Novation LLC aggrevated the government’s False<br />
Claims Act investigation of Novation LLC.<br />
42. On November 17, 2007 the New York Times ran a feature interview on the<br />
newly unsealed case by a senior Novation LLC manager who witnessed the<br />
conduct described by the petitioner in the <strong>Medical</strong> <strong>Supply</strong> complaint: See Exb 23.<br />
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(1) Respondent’s Effect On Litigation in the Eighth Circuit<br />
43. The respondent’s earlier decisions deceived or confused Western District of<br />
Missouri Chief Judge Fernando J. Gaitan, Jr. and he declined to remand the<br />
petitioner’s state law claims against US Bank and US Bancorp that had earlier<br />
been dismissed without prejudice by the respondent and transferred them back to<br />
the respondent despite the exclusive federal jurisdiction being exercised over those<br />
same claims by the Tenth Circuit Court of Appeals. See Exb. 25.<br />
44. The US Attorney for the Western District of Missouri was removed from<br />
office under a now repealed provision of the USA PATRIOT II to interfere in the<br />
Medicare Fraud investigation of Robert H. Bezanson and CoxHealth in<br />
Springfield, Missouri and to ensure the above mentioned FBI criminal complaint<br />
was not investigated, necessitating the petitioner’s press releasing of a USDOJ<br />
memo on the “Ninth US Attorney” and indirectly causing the defendants’ work to<br />
deprive the petitioner of a republican form of government being defeated through<br />
legislative redress. See Exb. 24.<br />
45. Western District of Missouri Judge Ortrie D. Smith was deceived or<br />
confused by the respondent’s rulings as used by the defendants and ordered the<br />
transfer of <strong>Medical</strong> <strong>Supply</strong> II to the Kansas District court despite the strong<br />
interests of the State of Missouri which was being forced to eliminate Medicaid,<br />
See Exb. 26.<br />
46. The complaint had stated clearly the pressing State of Missouri interest:<br />
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President George Bush who has observed that there is an absence of<br />
competition in healthcare (47 on pg.43) came to St. Luke’s Health System<br />
in Lee’s Summit, Missouri with Secretary of Health and Human Services<br />
Michael Leavitt, two days after the State of the Union speech to personally<br />
initiate the administration’s plan to make healthcare affordable. Office of the<br />
President, January 25, 2007 press release.<br />
Governor Matt Blunt described in the complaint 85 at pg. 50 as having to<br />
cut Missouri citizens from Medicaid because of hospital supply cost<br />
increases, made healthcare the central priority of his State of the State speech<br />
but on January 25th chose to speak about healthcare at other Missouri<br />
communities rather than appear with President George Bush in Lee’s<br />
Summit. Office of the President, January 25, 2007 press release Comments<br />
of Secretary Leavitt.<br />
On the same day, the New York Times reported that the Attorney General<br />
for the State of Connecticut, Richard Blumenthal reached a settlement with<br />
H.R.D.I. that <strong>Medical</strong> <strong>Supply</strong> identified as a co-conspirator but did not name<br />
as a defendant over the commercial bribes given to hospital administrators<br />
141-143 pg. 61. H.R.D.I. agreed to end operations as a for profit<br />
company. “Group Settles Health Sales Conflict Case”, NY Times Jan. 25,<br />
2007<br />
See Exb. 22<br />
47. Western District of Missouri Judge Ortrie D. Smith could not have<br />
known that the respondent would be biased or that the earlier decision in<br />
<strong>Medical</strong> <strong>Supply</strong> I had been obtained through extrinsic influence.<br />
48. The Western District of Missouri Chief Judge Fernando J. Gaitan, Jr.<br />
could not have known that the prior rulings were unrelated to the merits of the<br />
petitioner’s claims against the GE co-conspirators who had breached the<br />
contract for the sale of the real estate lease to withhold a critical capital input<br />
for the purpose of continuing to exclude the hospital supply market and was<br />
surprised at the necessity for mandamus to restore the petitioner’s ability to<br />
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enter the market where Missouri doctors had testified patients would die from<br />
the Medicaid cuts. See Exb 27.<br />
(2) Respondent’s Effect On Litigation in the State of Missouri<br />
49. The case was returned to the Missouri State Court which still appeared<br />
influenced by the respondent’s earlier decisions necessitating a second and third<br />
mandamus. See Exb. 28.<br />
50. The GE defendants continued the extrinsic fraud, even repeatedly<br />
making misrepresentations to the Missouri State Court that ultimately resulted<br />
in additional federal racketeering claims based on the GE defendants’<br />
subsequent conduct and the action is now removed again to the Western District<br />
of Missouri.<br />
51. The respondent exerted jurisdiction over the petitioner’s state contract<br />
claims filed in Independence, Missouri despite the repeated notice that the<br />
Tenth Circuit had exclusive federal jurisdiction during the pending petitioner’s<br />
appeal and the detailed procedural history on the face of the complaint. See<br />
Exb. 29.<br />
52. The petitioner was forced to file a separate concurrent state law antitrust<br />
case in Independence, Missouri against the current Kansas district Court<br />
antitrust defendants that the respondent dismissed without prejudice when the<br />
petitioner had more than adequately plead each of the elements of his federal<br />
antitrust and racketeering claims. See Exb. 30.<br />
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53. Since the defendants law firms were not given meaningful guidance on<br />
antitrust law by the respondent’s clearly erroneous dismissals, the defendants<br />
continued the unlawful conduct and committed subsequent acts injuring<br />
Missourians and involving Missouri hospitals and executives in the restraint of<br />
trade.<br />
54. The defendants cannot now avail themselves of the advantages of a<br />
federal forum because the respondent struck the petitioner’s Rule 60(b) motion<br />
despite the complete absence of jurisdiction to do so under Rule 12(f). See<br />
Exbs. 7 and 8.<br />
F. Respondent As a Catalyst For New Federal Judicial Ethics Procedures<br />
55. When the respondent went beyond erroneous decisions and<br />
communicated admonishment of the petitioner’s research and diligence despite<br />
the respondent’s repeated demonstrations that the petitioner’s filings had been<br />
unread and that the adopted defendants’ legal arguments conflicted with<br />
controlling legal authorities, the petitioner began working to improve the<br />
federal justice system.<br />
56. On November 10, 2004 the petitioner wrote a letter to members of the<br />
US Senate Committee on the Judiciary including Senator Arlen Specter. See<br />
Exb. 32.<br />
57. After the failure of judicial review the petitioner wrote a second letter to<br />
members of the committee including Senator Arlen Specter. See Exb. 33.<br />
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58. Through the petitioner’s lobbying and working for reform with the US<br />
Senate, the national Judicial Council redefined its role in judicial ethics<br />
complaints and the discipline of judges.<br />
59. Despite these changes, the respondent still continues to exercise open<br />
prejudice and bias defeating the Congressionally legislated public policy of<br />
having the petitioner with his knowledge of the hospital supply industry address<br />
anticompetitive practices that violate federal law.<br />
60. The petitioner has been forced to redouble his judicial reform efforts.<br />
See Exb. 34.<br />
61. When the petitioner complained about the misconduct of the<br />
respondent’s magistrate, the former Chief Judge of the Tenth Circuit<br />
determined that the ethics complaint was frivolous before the transcript of the<br />
magistrate’s testimony was available. See Exb. 35.<br />
62. However the former Chief Judge recognized the likelihood bias or<br />
prejudice against the petitioner’s cause existed. Id.<br />
63. The transcript clearly shows the magistrate at first misrepresented the<br />
record to the Kansas Disciplinary tribunal in regards to staying discovery in the<br />
petitioner’s litigation despite the absence of jurisdiction to do so. See Exb 13<br />
Atch 9. Transcript of Magistrate’s testimony and Exb 13 Atch 9A Order of<br />
Stay.<br />
64. The defendants’ law firm is aware of the changes made in the judicial<br />
council’s treatment of judicial misconduct complaints yet they still file<br />
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pleadings that contain extrinsic fraud believing the respondent will grant them.<br />
See Exb 36.<br />
65. The US Bank and US Bancorp defendants are currently arguing before<br />
the respondent in the state contract based claims case for a protective order to<br />
evade having to turn over the email contract for the escrow accounts and the<br />
written loan application that are the writings of the subject contract dispute<br />
because the documents are not “relevant.”<br />
66. While this will no doubt lead to new sanctions against the petitioner for<br />
“frivolously” arguing the writings to a written contract are relevant and<br />
discoverable the danger to justice is that the respondent will severely restrict<br />
discovery of the records related to the extrinsic fraud in the preceding litigation<br />
used by the defendants to evade their liability under contract and which is<br />
inherent in a Missouri state law breach of contract claim as a breach in the UCC<br />
duty of good faith and fair dealing.<br />
67. Because the respondent and US Bancorp defense counsel failed to<br />
research the applicable law, they thought their plan of having the federal<br />
racketeering claims over misconduct in the litigation including extrinsic fraud<br />
and depriving the petitioner of counsel dismissed would prevent the petitioner<br />
from proving their unlawful behavior.<br />
67. The petitioner accidentally discovered the respondent’s subterfuges of<br />
twice preventing the petitioner from receiving notice through the mail of orders<br />
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made by the respondent that would have resulted in the loss of the petitioner’s<br />
property.<br />
68. The danger now is that the respondent will again take additional actions<br />
to secure a dismissal through fraud of the petitioner’s remaining state law<br />
breach of contract, breach of fiduciary duty, tortuous interference and trade<br />
secret claims to conceal misconduct the respondent witnessed and did not report<br />
or participated in and otherwise act out of an interest in the outcome of the<br />
litigation.<br />
E. Respondent’s Previous Misuse of the Kansas District Court Clerk’s Office<br />
69. The respondent permitted judicial law clerks to make use of the Office of<br />
the Kansas Clerk of the Court to attempt to manufacture a further ethics complaint<br />
against the petitioner’s counsel to deprive the petitioner of representation.<br />
70. This was done because the petitioner witnessed the state disciplinary<br />
proceedings were failing to charge the petitioner’s counsel with anything but the<br />
conduct the Kansas Rules of Professional Ethics clearly required.<br />
71. The second concern was that the respondent’s magistrate who had used an<br />
unrelated case before another Kansas District Court Judge involving the<br />
petitioner’s counsel had made a mistake at law in targeting the petitioner.<br />
72. The petitioner’s antitrust and racketeering complaint averred the conduct<br />
that ultimately resulted in depriving the petitioner of counsel including the<br />
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attempted extortion by the respondent’s magistrate and misuse of the District of<br />
Kansas Clerk’s office by the respondent’s staff:<br />
“28. When …[Magistrate]… returned to Kansas City, events still seemed to<br />
be set against Mr. Bolden’s cause. The notice that the record on appeal was<br />
complete was erroneously given to the Tenth Circuit, though the mistake was<br />
clear from the appearance docket that two transcripts that had been ordered<br />
still were not part of the record. The appeals clerk for Kansas District court<br />
would not correct the record, Bolden made a motion to correct the record,<br />
which was not addressed by …[Magistrate]…. See Atch. 10<br />
29. Bolden’s motion for an extension of time was sent to both the Tenth<br />
Circuit and the Kansas District Court. However it did not appear on the<br />
Tenth Circuit Court of Appeals appearance docket. Bolden’s counsel called<br />
the Tenth Circuit and a deputy clerk identified as Kathy stated that it had<br />
been received two days before but it was still not docketed. After the call<br />
Kathy reentered on the docket that Bolden’s brief was due January 26th. See<br />
Atch. 11<br />
30. On the same day, counsel called the Kansas District Court appeals clerk<br />
who stated she was working on the letter correcting the date the record was<br />
complete. However, this letter did not appear on the docket the 25th or even<br />
the 26th. Bolden’s counsel was forced to work without sleep to file an<br />
incomplete appellate brief on the 26th emailing the brief to the court and<br />
counsel for the City and turning in the briefs and appendixes to US Postal<br />
Delivery service for the Tenth Circuit and the City of Topeka. See Atch. 12<br />
31. Both the Kansas District Court correction of the record on appeal and the<br />
Tenth Circuit docketing of the motion for extension occurred after the brief<br />
and appendix was received, giving the appearance to an impartial observer<br />
that the events were coordinated to manufacture an ethics violation for<br />
Bolden’s counsel after the failure of previous attempts.”<br />
See Exb. 13, Exb 13 Atch 10, Exb 13 Atch 12 and Exb 13 Atch 13.<br />
II. Memorandum in Support<br />
The standard of proof to be applied in this inquiry is that of clear and<br />
convincing evidence. In re Rome, 218 Kan. 198, Syl. p 9, 542 P.2d 676 (1975).<br />
The petitioner’s complaint provided clear and convincing evidence that the<br />
ministerial act of the respondent withholding notice of the order accelerating the<br />
22<br />
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due date for a response to the defendants’ second motion for Rule 12 Dismissal<br />
violated the Judicial Ethics Cannons. The additional information regarding the<br />
highly unusual decisions of the respondent in the preceding litigation provides<br />
reason to infer that withholding notice of an order that is likely to result in the loss<br />
of the fundamental and substantial property rights the petitioner has been in court<br />
seeking to recover for more than six years was done out of an impermissible bias<br />
under the ethics cannons.<br />
The order signed by the Hon. Robert H. Henry, Chief Circuit Judge states<br />
that the petitioner is complaining about the respondents rulings and therefore the<br />
complaint is frivolous. This is a misrepresentation of the petitioner’s complaint<br />
and reproduces the results the petitioner receives from the respondent and upon<br />
appeal. This is simply straw man fraud, the complaint described the respondent’s<br />
ministerial act of preventing the petitioner from receiving notice of an order that if<br />
neglected would have caused him to lose the property of all his remaining claims.<br />
“Having erected this straw man, the appellants then shred it…”Limone v. Condon, 372<br />
F.3d 39 at 46 (1st Cir., 2004). “Courts must be equally careful, however, not to permit a<br />
defendant to hijack the plaintiff's complaint and recharacterize its allegations so as to<br />
minimize his or her liability.” Limone id., 372 F.3d 39 at 46.<br />
judiciary.<br />
A. Respondent’s Judicial Misconduct<br />
The respondent has failed to uphold the integrity and independence of the<br />
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The respondent has repeatedly violated Canons 1, 2A, 2B, 3A1, 3A2, 3A3,<br />
3A4, 3A6, 3B2, and 3B3 and should be subjected to proceedings under the<br />
Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 (28<br />
U.S.C. §§ 332(d)(1), 351 to 364). The seriousness of the violations, the intent of<br />
the respondent, the recurring pattern of improper activity, and the effect of the<br />
improper activity on not only the petitioner, but the defendants and their counsel<br />
and the judicial systems of the Eighth and Tenth Circuits and the states of Kansas<br />
and Missouri warrants action by the Judicial Council Tenth Circuit.<br />
The petitioner, twice by the most improbable chance, was able to learn of<br />
orders by the respondent that if missed would have resulted in the loss of all the<br />
petitioner’s claims. The petitioner was therefore not yet injured by the respondent<br />
in the loss of the fundamental right of access to the court. Maness v. Dist. Court,<br />
Logan County-Northern Div., 495 F.3d 943 at 944-945 (8th Cir., 2007).<br />
Comment to 2A to the federal judicial ethics canons states that the<br />
prohibition against behaving with impropriety or the appearance of impropriety<br />
applies to the professional conduct of a judge.<br />
The then Acting Kansas District Court Clerk may be liable to the petitioner<br />
for non-discretionary duty of providing the petitioner, a pro se litigant notice and<br />
service by mail at the petitioner’s address of record for orders by the respondent:<br />
“Ministerial duties are those of a clerical nature performed in obedience to<br />
mandate without the exercise of judgment and are therefore not immune<br />
from suit. Jackson v. Wilson, [581 S.W.2d 39 (Mo.App.1979) ] at 43, Yelton<br />
v. Becker, 248 S.W.2d 86, 89 (Mo.App.1952).”<br />
24<br />
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Head v. Platte County, Mo., 749 P.2d 6 at 12, 242 Kan. 442 (Kan., 1988).<br />
However such liability cannot make the petitioner whole and it is clear that she did<br />
not even know the petitioner or have any reason to keep him from competing with<br />
Novation LLC in the national market for hospital supplies. She was either directed<br />
to deviate from a policy of the court that the petitioner has observed repeatedly<br />
that she follows vigorously or otherwise improperly communicated to about the<br />
ongoing litigation. See Akbarnia v. Deming, 845 F.Supp. 788 at 789-790 (D. Kan.,<br />
1994)<br />
Since staff of the Clerk of the Kansas District court do not read pleadings<br />
they receive from parties or the court for the purpose of exercising discretion, her<br />
prejudice if any has come from the respondent and the law clerk’s or magistrate’s<br />
in this case over which the respondent is responsible for under the judicial canons.<br />
Smith v. State, 264 Kan. 348, 955 P.2d 1293 at 1301(Kan., 1998).<br />
The Judicial Conference’s comment on Canon 3A(4) states:<br />
“Canon 3A(4). The proscription against communications concerning a proceeding<br />
includes communications from lawyers, law teachers, and other persons who are<br />
not participants in the proceeding, except to the limited extent permitted. It does<br />
not preclude a judge from consulting with other judges, or with court personnel<br />
whose function is to aid the judge in carrying out adjudicative responsibilities. A<br />
judge should make reasonable efforts to ensure that this provision is not<br />
violated through law clerks or other staff court personnel.” [Emphasis added]<br />
The acting Clerk of the Kansas District Court no doubt capably did what she<br />
was caused to do by the respondent or his staff. However the respondent has still<br />
committed judicial misconduct. The Proposed Revised Code dated 02/29/<strong>08</strong><br />
contains a comment to Canon 3B(2) that states:<br />
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“A judge is responsible for his or her own conduct and for the conduct of<br />
others, such as court personnel, when those persons are acting under the<br />
judge’s direction or control. A judge may not direct court personnel to<br />
engage in conduct on the judge’s behalf or as the judge’s representative<br />
when such conduct would violate the Code if undertaken by the judge.”<br />
The respondent’s magistrate communicated falsely while under oath to the<br />
Kansas Attorney Disciplinary Panel in January 20005 about the petitioner’s<br />
litigation which was still ongoing and in appeal. The comment to Canon 3A(6)<br />
states: “The admonition against public comment about the merits of a pending or<br />
impending action matter continues until completion of the appellate process.”<br />
The petitioner in his affidavit (itself attacked without basis by the respondent<br />
as untruthful in the respondent’s Memorandum and Order of Dismissal) described<br />
the magistrate staying back to talk ex parte to the tribunal members an extrinsic<br />
fraud used to procure the disbarment that the petitioner witnessed and no one<br />
disputes.<br />
It is well settled, of course, that a judge is not subject to discipline for<br />
exercising his discretion in performing a judicial act, even if his decision be<br />
erroneous (In re Laughlin, 153 Tex. 183, 265 S.W.2d 805, appeal dismissed,<br />
348 U.S. 859, 75 S.Ct. 84, 99 L.Ed. 677; In re McGarry, 380 Ill. 359, 44<br />
N.E.2d 7). However, not every act of a judge done in the performance of his<br />
duty is an act of judicial discretion. As the court said in Bar Assn. v. Franko,<br />
168 Ohio St. 17, 151 N.E.2d 17:<br />
“Although it is quite true that a mere mistake in the exercise of judicial<br />
discretion by a judge is not and should never be the cause or subject of a<br />
disciplinary proceeding under the Canons of Judicial Ethics prescribed by<br />
26<br />
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this court, we must call attention to the fact that nor everything a judge does<br />
in connection with his judgeship can be said to be an exercise of his 'judicial<br />
discretion."<br />
Bar Assn. v. Franko, 168 Ohio St. p. 30, 151 N.E.2d p. 27.<br />
The Nebraska Code of Judicial Conduct is based in part on the American<br />
Bar Association's Model Code of Judicial Conduct (1999). Nebraska recognizes<br />
courts have properly enforced judicial canons and disciplined judges for their<br />
official conduct:<br />
“Instances of misconduct during the performance of official duties have also<br />
resulted in disciplinary sanctions of varying degrees. In re McDonough, 296<br />
N.W.2d 648 (Minn.1979), involved a judge who was addicted to alcohol and,<br />
among other things, threatened county and state officers, was absent from his<br />
duties, and abused those appearing before him. He was censured, ordered to<br />
forfeit his salary for 3 months, and placed on probation for the remainder of<br />
his service as a judge. The judge in Matter of Inquiry Concerning a Judge<br />
No. 481, 251 Ga. 524, 307 S.E.2d 505 (1983), was suspended without pay<br />
for 15 days for making flippant or derogatory remarks, both in the presence<br />
of and outside the hearing of the jury during the course of a trial, and<br />
directing the reporter to "take down nothing further." In In re Romero, 100<br />
N.M. 180, 668 P.2d 296 (1983), a judge was suspended for 30 days because<br />
he lacked patience, dignity, and courtesy in dealing with those who appeared<br />
before him, and otherwise neglected his duties. In Gonzalez v. Com'n on<br />
Judicial Performance, 33 Cal.3d 359, 657 P.2d 372, 188 Cal.Rptr. 880<br />
(1983), appeal dismissed --- U.S. ----, 104 S.Ct. 690, 79 L.Ed.2d 158 (1984),<br />
a judge who used his judicial office in efforts to intercede in criminal matters<br />
involving his friends and benefactors, who required attorneys to post their<br />
own funds as a condition of granting bail to their clients, who held court in<br />
the absence of counsel for one or both of the parties, who left the bench<br />
while evidence was being adduced, and who failed to make a record of<br />
proceedings was removed<br />
from office.”<br />
1984).<br />
Kneifl, In re, 351 N.W.2d 693 at 700, 217 Neb. 472 at 484-485 (Neb.,<br />
B. Respondent’s Prejudicial Conduct<br />
27<br />
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The Judicial Conference’s comment on Canon 3A(3) states:<br />
“The duty to hear all proceedings fairly and with patience is not inconsistent<br />
with the duty to dispose promptly of the business of the court. Courts can be<br />
efficient and businesslike while being patient and deliberate. The duty under<br />
Canon 2 to act in a manner that promotes public confidence in the integrity<br />
and impartiality of the judiciary applies to all the judge’s activities, including<br />
the discharge of the judge’s adjudicative and administrative responsibilities.”<br />
The respondent has made orders containing false admonishments targeting<br />
the petitioner and his associates for the purpose of putting the petitioner’s cause in<br />
a bad light to evade review by a court looking at controlling precedent. The<br />
respondent is responsible for knowing this conduct is biased or prejudicial where<br />
the admonishments, threats and sanctions contradict controlling US Supreme<br />
Court and Tenth Circuit precedent and the express language of Congress that has<br />
been briefed before him by the petitioner and not refuted by the defendants:<br />
For example, an average judge would understand that violation of the Code<br />
of Judicial Conduct would fall within the meaning of "prejudicial conduct"<br />
even absent our recent decision in Worthen. See 926 P.2d at 868. As noted<br />
above, canon 3(B)(9) states that it is improper for a judge to "make any<br />
public comment that might reasonably be expected to affect [the] outcome"<br />
of a case before another court. Opining as to the ultimate issue before<br />
another judge is a public comment that may be reasonably expected to affect<br />
the outcome of that proceeding. In re Charge of Judicial Misconduct, 47 F.3d<br />
399, 400 (10th Cir.1995)”<br />
McCully, In re, 942 P.2d 327 at 332 (Utah, 1997).<br />
When the respondent communicates within orders or causes<br />
communications to be made to Mr. Fisher, former Clerk of the Tenth Circuit Court<br />
of Appeals for the purpose of negatively influencing judges reviewing the<br />
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petitioner’s appeal or to other trial judges for the purpose of securing a prejudiced<br />
outcome in related litigation, the respondent is violating Canon 3B.<br />
“Canon 3B(9) also plainly states that a judge's public comments are<br />
restricted while a proceeding is pending or impending "in any court." Given<br />
this unambiguous language, we conclude that Canon 3B(9)'s limitations on<br />
public comments apply where a trial judge comments on a matter that is<br />
before another trial judge or has been taken to an appellate court. See, e.g.,<br />
Broadman v. Commission, 18 Cal. 4th 1079, 959 P.2d 715, 77 Cal. Rptr. 2d<br />
4<strong>08</strong> (1998); In re Inquiry of Broadbelt, 146 N.J. 501, 683 A.2d 543 (1996);<br />
Matter of Hey, supra; Ryan v. Com'n on Judicial Performance, 45 Cal. 3d<br />
518, 754 P.2d 724, 247 Cal. Rptr. 378 (1988). In limiting the scope of<br />
commentary regarding pending cases in any court, the rule precludes the<br />
possibility of undue influence on the judicial process and the threat to public<br />
confidence posed by a judge from one court or jurisdiction criticizing the<br />
rulings or technique of a judge from a different jurisdiction. See In re Inquiry<br />
of Broadbelt, supra. Such comments could affect the outcome of the case,<br />
appear to exert pressure on a judge to decide a certain way, and undermine<br />
public confidence in judicial decisions. See id.”<br />
In re Complaint Against White, 264 Neb. 740 at 67-68 (NE, 2002).<br />
At the very least the respondent’s admonishments and threats of sanctions<br />
are a violation of Canon 3A:<br />
“(3) A judge should be patient, dignified, and courteous to litigants, jurors,<br />
witnesses, lawyers, and others with whom he deals in his official capacity . .<br />
..' (Rule No. 601, 214 Kan. xciv-xcv.)”<br />
Rome, In re, 542 P.2d 676, 218 Kan. 198 (Kan., 1975).<br />
This circuit has the leading federal case In re Charge of Judicial<br />
Misconduct 47 F.3d 399 for addressing the circumstances where a trial judge<br />
actually becomes involved in procuring an outcome through extrinsic conduct and<br />
has determined such conduct violates Canon 2:<br />
“Canon 2 provided at the time of the events in question that "[a] judge should<br />
avoid impropriety and the appearance of impropriety in all of the judge's<br />
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activities." A judge should be above the fray; he or she should not be<br />
influenced by, or appear to be caught up in or contribute to, public clamor.<br />
When a judge becomes embroiled in a controversy, the line between the<br />
judge and the controversy before the court becomes blurred, and the judge's<br />
impartiality or appearance of impartiality may become compromised. Here,<br />
the Judge's public comments presented the risk of involving the Judge as an<br />
actor in the events, and, at least in the public's perception, could present the<br />
appearance that the Judge's impartiality and objectivity had been<br />
compromised.<br />
Indeed, the Judge's comments led the Tenth Circuit to vacate and<br />
remand several of the decisions relating to this case because the Court of<br />
Appeals found an appearance that the Judge was biased so as to necessitate<br />
recusal. As a result of the Judge's public comments, each of these cases had<br />
to be reheard in front of a new judge.”<br />
Charge of Judicial Misconduct, In re, 47 F.3d 399 (C.A.10 (Jud.C.), 1995).<br />
C. Vacatur Under 455 Is Appropriate<br />
The damage done by the respondent is to great for the judicial counsel to<br />
avoid taking action:<br />
(a) risk of injustice to the parties in the particular case<br />
The sole reason the defendants to the petitioner’s Missouri State Law<br />
Antitrust action are not in a federal court and now cannot obtain removal to a<br />
federal court is the respondent’s failure to follow controlling US Supreme Court<br />
and Tenth Circuit case law adopting the transactional approach to preclusion or res<br />
judicata. The petitioner fully briefed the controlling precedent and quoted<br />
treatises and even traced this principle from Lawlor to the current decisions of the<br />
Tenth Circuit.<br />
Instead, the respondent colluded with the defendants’ local counsel who<br />
were even unaware of the conduct or interests of their clients and the respondent<br />
30<br />
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adopted their poorly concealed false misrepresentations of the applicable law to<br />
accomplish the local firm’s short sited extrinsic fraud strategy.<br />
US Bank and US Bancorp have been inexplicably divorced from the<br />
petitioner’s appeal of the dismissal of federal claims and isolated in the<br />
respondent’s court under a new case number that effectively prevents them from<br />
sharing their liability with the very profitable healthcare monopolist co-defendants<br />
that manipulated the into injuring the petitioner in conduct subject to joint and<br />
several liability.<br />
(b) the risk that the denial of relief will produce injustice in other cases<br />
The decisions of the respondent have been used repeatedly in Missouri<br />
State Court and the Western District of Missouri to attempt to prejudice outcomes<br />
against the petitioner, even on subsequent conduct and different defendants. Many<br />
of which are represented by counsel that write motions to dismiss based on the<br />
respondent’s orders without realizing the seriousness of the case law the petitioner<br />
diligently subjected his claims to.<br />
The former Chief Bankruptcy Judge of the Northern District of Illinois<br />
turned up sharing information in an investigation that resulted because the defense<br />
firms relying on the respondent’s un-reviewed decisions counseled their clients<br />
that is was okay to further the hospital supply monopoly by tortuous interference.<br />
The defendants continued interfering with the petitioner’s attempts to mediate his<br />
losses from US Bank and US Bancorp’s breach by attempting substitute<br />
arrangements with third parties. The defendants counsel subjecting their clients to<br />
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this per se liability in the absence of any legal interest, solely to prevent mediating<br />
or covering damages to lessen the judgment for breach of contract is actually<br />
beyond belief and defies explanation. The conduct ould only happen in a<br />
complete vacuum of civil enforcement, a condition nearly created in the national<br />
market for hospital supplies by the respondent.<br />
(c) the risk of undermining the public's confidence in the judicial process<br />
The petitioner was the only remaining electronic marketplace for hospital<br />
supplies that US Bancorp Piper Jaffray, Novation LL and GE did not effectively<br />
buy or put out of business. Besides four consecutive years of hearings in the US<br />
Senate Judiciary Committee, Sub-Committee on Antitrust, six articles in the New<br />
York Times, a BBC television Channel 4 special and every major presidential<br />
candidate calling for antitrust enforcement in healthcare it is difficult to imagine a<br />
more serious set of circumstances that could create impending loss of public<br />
confidence in the judicial process.<br />
B. Relief<br />
In Lauer v. Strang, 788 F.2d 135, 138 (8th Cir.1985), the Eighth Circuit<br />
concluded that appellate review of judicial conduct obviated the need for<br />
disciplinary action by the Judicial Council. The respondent has deliberately<br />
communicated prejudicial information against the petitioner and contrary to<br />
controlling law in his memorandum and orders despite the absence of any<br />
discovery that twice resulted in the Tenth Circuit upholding the respondent<br />
32<br />
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without independent review resulting in orders that contradict the Tenth Circuit’s<br />
own precedent.<br />
The Tenth Circuit was unable to review the respondent’s denial of<br />
injunctive relief that would have prevented all defendants from monetary liability<br />
because the respondent continued to assert jurisdiction over the <strong>Medical</strong> <strong>Supply</strong> I<br />
case during the interlocutory appeal. Despite the Moot Dismissal of the Appeal<br />
calling the respondent’s attention to the improperness of this trial court conduct<br />
after the notice of appeal, the respondent again asserted federal trial court<br />
jurisdiction over the petitioner’s pendant state law contract claims against US<br />
Bank and US Bancorp during the Tenth Circuit’s jurisdiction over those same<br />
claims in the petitioner’s <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> v. Neoforma appeal.<br />
That appeal was ultimately dismissed over timeliness of the Notice of<br />
Appeal, however the respondent’s open threatening of the petitioner and his<br />
representation for any attempt to make post judgment motions or continue the case<br />
had the foreseeable and intended effect of making it very difficult for the<br />
petitioner to obtain counsel for the appeal, hence the delay filing the notice.<br />
(1) Disqualification<br />
The respondent must now disqualify himself for his conduct under Section<br />
28 U.S.C. 455(a):<br />
“Disqualification is mandatory for conduct that calls a judge's impartiality<br />
into question. See 28 U.S.C. 455(a); In re School Asbestos Litig., 977 F.2d<br />
764, 783 (3d Cir. 1992). Section 455 does not prescribe the scope of<br />
disqualification. Rather, Congress "delegated to the judiciary the task of<br />
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fashioning the remedies that will best serve the purpose" of the<br />
disqualification statute. Liljeberg, 486 U.S. at 862.<br />
At a minimum, 455(a) requires prospective disqualification of the<br />
offending judge, that is, disqualification from the judge's hearing any further<br />
proceedings in the case. United States v. Microsoft Corp., 56 F.3d 1448,<br />
1463-65 (D.C. Cir. 1995) (per curiam) ("Microsoft I"). Microsoft urges<br />
retroactive disqualification of the District Judge, which would entail<br />
disqualification antedated to an earlier part of the proceedings and vacatur of<br />
all subsequent acts. In re School Asbestos Litig., 977 F.2d at 786 (discussing<br />
remedy options).<br />
"There need not be a draconian remedy for every violation of 455(a)."<br />
Liljeberg, 486 U.S. at 862. Liljeberg held that a district judge could be<br />
disqualified under 455(a) after entering final judgment in a case, even though<br />
the judge was not (but should have been) aware of the grounds for<br />
disqualification before final judgment. The Court identified three factors<br />
relevant to the question whether vacatur is appropriate: "in determining<br />
whether a judgment should be vacated for a violation of 455(a), it is<br />
appropriate to consider the risk of injustice to the parties in the particular<br />
case, the risk that the denial of relief will produce injustice in other cases,<br />
and the risk of undermining the public's confidence in the judicial process."<br />
Id. at 864. Although the Court was discussing 455(a) in a slightly different<br />
context (the judgment there had become final after appeal and the movant<br />
sought to have it vacated under Rule 60(b)), we believe the test it<br />
propounded applies as well to cases such as this in which the full extent of<br />
the disqualifying circumstances came to light only while the appeal was<br />
pending. In re School Asbestos Litig., 977 F.2d at 785.”<br />
USA. v. Microsoft Corp., 253 F.3d 34 at 116 (D.C. Cir., 2001).<br />
(2) Effect of Entitled Rule 60(b) relief<br />
The petitioner is entitled to Rule 60(b) relief restoring his antitrust action<br />
against the defendants Neoforma, Novation LLC, US Bank and US Bancorp so<br />
that discovery can proceed and the claims modified accordingly. Alternatively the<br />
judicial council can direct the appropriate relief of vacatur of all subsequent acts<br />
from when the respondent should have recused himself.<br />
34<br />
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The action has the petitioner’s motion to rewind the proceedings back and<br />
return to the Western District of Missouri where the important interests of the<br />
State of Missouri and the interpretation of its laws can be protected. The<br />
defendants would also be protected by unbiased and competent federal<br />
proceedings and could seek to retain federal jurisdiction over the pendant Missouri<br />
state law antitrust claims dismissed by the respondent without prejudice.<br />
The action could be postponed for the Kansas District court to consider the<br />
denial of a hearing in the reciprocal disbarment of the petitioner’s counsel by the<br />
State of Kansas for advocacy of federal rights in the Kansas District court, upheld<br />
by the Tenth Circuit and subsequent rulings by Kansas District Court Chief Judge<br />
Vratil.<br />
(3) Discipline<br />
The fact of reversal, however, only partially corrects the problem and is<br />
limited to just those cases. At every step for the last six years there have been well<br />
educated, adequately trained and compensated personnel of the Tenth Circuit’s<br />
courts who should have protected the petitioner from this conduct. Instead they<br />
took no action or worse helped to conceal it.<br />
If the Tenth Circuit is unwilling to<br />
publicly state that some of this conduct was wrong, it is unlikely to do anything<br />
but increase in the future.<br />
CONCLUSION<br />
35<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5730
Whereas for the following reasons the petitioner respectfully requests that<br />
the judicial council stop the continuing violations of Judicial Canons 1, 2A, 2B,<br />
3A1, 3A2, 3A3, 3A4, 3A6, 3B2, and 3B3 by the respondent.<br />
Respectfully Submitted,<br />
S/ Samuel K. Lipari<br />
Samuel K. Lipari<br />
297 NE Bayview<br />
Lee's Summit, MO 64064<br />
816-365-1306<br />
saml@medicalsupplychain.com<br />
Pro se<br />
36<br />
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Date: February, 1 st 20<strong>08</strong><br />
Office of the Circuit Executive<br />
United States Tenth Circuit<br />
Byron White United States Courthouse<br />
1823 Stout Street<br />
Denver, Colorado 80257<br />
Re: Judicial Ethics Complaint against US District for Kansas Court Judge Carlos Murguia<br />
Dear Honorable Chief Judge Deanell Reece Tacha<br />
I am making a judicial ethics complaint against US District for Kansas Court Judge Carlos<br />
Murguia and his conduct in the following cases: <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. v. US Bancorp, NA et al KS.<br />
Dist. Case No. 02-2539; <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. v. General Electric Company, et al.,<br />
case number 03-2324-CM, <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. v Novation, et al; KS Dist. Court Case No.: 05-2299<br />
(Formerly W.D. MO. Case No. 05-0210);<br />
I am forced to make this complaint against my litigation interests and risk the certain retribution<br />
despite the recent US History of judges not being disciplined regardless of the seriousness of their<br />
offenses. 1 The reason I am forced to make this complaint is the urgency that the misconduct is continuing<br />
and threatens my property and has prevented me from incorporating and for all practical purposes, from<br />
ever entering the market for hospital supplies. I was stopped from obtaining a case management hearing in<br />
2002 in the matter that I am still litigating today, just before I was to meet with the Hon. Magistrate Waxse.<br />
The discoverable and public documents clearly and conclusively prove my claims. A known fact that seems<br />
to necessitate repeated dismissals before discovery commences. I finally got to the January, 20<strong>08</strong> case<br />
management hearing and Hon. Magistrate Waxse set a schedule including a timetable for dispositive<br />
motions that the parties mutually agreed to.<br />
While working on the next exhaustive task of documenting my damages and the controlling case<br />
law governing discovery, Judge Carlos Murguia issued a minute order having the effect of over ruling the<br />
case management order and did so by a minute entry with no document, having the effect of giving me no<br />
notice of the accelerated deadline.<br />
As the party experiencing the repeated prejudice and misconduct of US District for Kansas Court<br />
Judge Carlos Murguia I am fully aware of what would have happened to my chances of ever entering the<br />
market to compete with Novation LLC and lower hospital supply costs and all I have ever worked for if I<br />
had missed the stealth deadline.<br />
Each time I have had my claims dismissed based on facially false and readily discernable<br />
misrepresentations about the contents of my pleadings. This has been coupled with decisions on law<br />
directly contradicting controlling authority or adopting the defendants’ false legal argument grounded in the<br />
misrepresentation of whether words stating elements are in my complaints. Each time I have sought<br />
rehearings, pointing out the clear error of contradicting US Supreme Court authority on the precise issue or<br />
demonstrating that a federal statute or public law expressly states language for a private right of action,<br />
Judge Carlos Murguia has denied them. Judge Carlos Murguia has also denied me opportunities to correct<br />
any deficiencies in my claims.<br />
Any prejudice against me or my claims by Judge Carlos Murguia cannot be based on an objective<br />
view of the law or the economic conditions resulting from restraint of trade in the market for hospital<br />
1 http://writ.news.findlaw.com/dean/2004<strong>08</strong>13.html<br />
Exb 1<br />
Atch 1 Part C Exhibits<br />
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supplies. Similarly, the defendant banking conglomerate US Bancorp has lost evidentiary hearings, been<br />
fined and settled with the New York Attorney General and the Securities and Exchange Commission for<br />
their conduct in extorting new healthcare technology companies to the hospital supply marketplace<br />
controlled by Novation LLC and for conduct in the capitalization of my competitor Neoforma, Inc. If Judge<br />
Carlos Murguia is acting on ex parte information from the law firms representing the defendants, their<br />
pleadings reveal a complete absence of knowledge of the crisis preventing Americans from receiving<br />
healthcare through artificial inflation and restraint of trade. The nation and even the defendants are being<br />
harmed by Judge Carlos Murguia’s lack of impartiality.<br />
I have sought judicial review of Judge Carlos Murguia’s misconduct through appeal in <strong>Medical</strong><br />
<strong>Supply</strong> <strong>Chain</strong>, Inc. v. US Bancorp, NA et al 10th Cir. Case No.: 02-3443; <strong>Medical</strong><br />
<strong>Supply</strong> <strong>Chain</strong>, Inc. v. General Electric Company, et al. No. 04-3075 and 04-3102 (10th Cir.) and <strong>Medical</strong><br />
<strong>Supply</strong> <strong>Chain</strong>, Inc. v. US Bancorp, NA et al 10th Cir. Case No.: 03-3342; 06- 3331. This has been frustrated<br />
by back channel communications fostered in Judge Carlos Murguia’s office that prejudice me and everyone<br />
associated with helping me in the eyes of the Tenth Circuit Court of Appeals and other courts. The most<br />
recent appeal decisively showed Judge Carlos Murguia’s error on every point sustaining his ruling and the<br />
statement of facts documented the blatantly false claims the required pleading elements were not stated<br />
clearly in my complaint. See Applt Br at pages 19-31, Applee Br.: 2 , 3<br />
The notice of appeal was not timely. My former counsel Bret D. Landrith never missed deadlines,<br />
only the defense counsel. I depended on his research and willingness to take my action on contingency as<br />
Congressional policy provided for. It became essential to the opposing law firms to have him prevented<br />
from helping me. My former counsel was disbarred over the ex parte communications to the Kansas state<br />
disciplinary authority fostered by Judge Carlos Murguia and reciprocally disbarred after by Judge Carlos<br />
Murguia vehement dismissal with sanctions of <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. v Novation, et al; KS Dist.<br />
Court Case No.: 05-2299 (Formerly W.D. MO. Case No. 05-0210) and threats to sanction me or my<br />
counsel for seeking reconsideration. The past unwillingness of the Tenth Circuit to exercise judicial review<br />
and the financial sanctions being issued for correctly stating the law made it very dangerous for Dennis<br />
Hawver and impossible to find replacement counsel.<br />
Shortly after the appeal was rejected, the national news covered the hospital supply restraint of<br />
trade problem. In "Blowing the Whistle, Many Times" The New York Times Cynthia Fitzgerald By Mary<br />
Williams Walsh, November 18, 2007 described hundreds of millions of dollars lost from Medicare by the<br />
misconduct. 4 http://www.nytimes.com/2007/11/18/business/18whistle.html. I have maintained the<br />
documentary evidence that is the basis for my claims in the above litigation online at<br />
http://www.medicalsupplychain.com/news.htm and includes four years of US Senate Judiciary Committee<br />
testimony on the restraint of trade I have raised in my complaint and the conduct of Novation LLC in<br />
keeping healthcare technology companies from being capitalized.<br />
The national interest and lives lost from increasing and unaffordable healthcare resulting in the<br />
lack of competition in hospital supplies has made Judge Carlos Murguia’s dereliction of his duty<br />
horrifically egregious. Not only I and the legal counsel and other business associates been injured but so<br />
have the defendants, some of which are publicly traded corporations. Despite Judge Carlos Murguia’s<br />
willingness to rule for the defendants’ local counsel regardless of their failure to research issues or even to<br />
be honest about the documents before the court in their written pleadings, the defendant corporations still<br />
are injured by the non law based outcomes and are unable to change their chargeable conduct and the avoid<br />
the consequences. Most of all, the integrity of the Kansas District Court and the people of the United States<br />
who provide for civil enforcement through the courts of Congresses laws against restraint of trade.<br />
I realize this begins a long road, first to the circuit Judicial Council’s likely unwillingness to<br />
investigate this complaint, then to the Judicial Conference. Afterwards, without relief I will be forced to<br />
then seek redress in the legislature and finally through popular sovereignty in changing the policy that<br />
2 http://www.medicalsupplychain.com/pdf/Novation%20Appeal%20Brief.pdf<br />
3 http://www.medicalsupplychain.com/pdf/Novation%20&%20US%20Bank%20Reply%20Brief.pdf<br />
4 http://www.nytimes.com/2007/11/18/business/18whistle.html.<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5733
permitted the repeated outcomes here that are contrary to fact and law. I know the Kansas District court and<br />
practitioners will wish me success. All of whom are hurt by the overt ness of Judge Carlos Murguia’s<br />
repeated misconduct and whom value our court system and its role in vindicating our national policies.<br />
I stand ready to provide all documentation and testimony any and every investigation of these<br />
events may require.<br />
Sincerely,<br />
Samuel K. Lipari<br />
Samuel Lipari<br />
<strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong><br />
297 NE Bayview<br />
Lee's Summit, MO 64064<br />
Phone: 816.365.1306<br />
Saml@<strong>Medical</strong><strong>Supply</strong><strong>Chain</strong>.com<br />
www.<strong>Medical</strong><strong>Supply</strong><strong>Chain</strong>.com<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5734
Exb 2<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5735
JUDICIAL COUNCIL OF THE<br />
TENTH CIRCUIT<br />
IN RE: CHARGE OF JUDICIAL<br />
MISCONDUCT<br />
No. 20<strong>08</strong>-10-372-<strong>08</strong><br />
Before HENRY, Chief Judge.<br />
ORDER OF DISMISSAL<br />
Complainant has filed a complaint of judicial misconduct against a district<br />
judge in this circuit. My consideration of this complaint is governed by 1) the<br />
misconduct rules issued by the Judicial Council of the Tenth Circuit, entitled<br />
Rules Governing Complaints of Judicial Misconduct and Disability; 2) the federal<br />
statute dealing with judicial misconduct, 28 U.S.C. § 351 et seq., and 3) the<br />
“Breyer Report,” a study by the Judicial Conduct and Disability Act Study<br />
Committee, headed by Supreme Court Justice Stephen Breyer, entitled<br />
Implementation of the Judicial Conduct and Disability Act of 1980. The Breyer<br />
Report may be found at: http://www.supremecourtus.gov/<br />
publicinfo/breyercommitteereport.pdf. To the extent that any relevant prior<br />
decisions of the full Judicial Council of this circuit consistent with those<br />
authorities exist, they may also govern my consideration of this complaint.<br />
Complainant has received or has access to a copy of this circuit’s<br />
misconduct rules. In accord with those rules, the names of the complainant and<br />
subject judge shall not be disclosed in this order. See Misconduct Rule 4(f)(1).<br />
Exb 3<br />
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Complainant takes issue with various rulings by the respondent judge,<br />
alleging resulting prejudice in multiple underlying cases and related appeals. Any<br />
claims based solely on the judge’s rulings are not cognizable as misconduct<br />
because they are “directly related to the merits of a decision or procedural<br />
ruling.” See Misconduct Rule 4(c)(2). The policy behind this rule is that “the<br />
complaint procedure cannot be a means for collateral attack on the substance of a<br />
judge’s rulings.” Breyer Report, App. E., 2. As explained in this circuit’s<br />
misconduct rules, only a court has the power to change a judge’s ruling.<br />
Misconduct Rule 1(e). Neither I, acting as Chief Judge, nor the Judicial Council<br />
of the circuit - both charged with the determination of judicial misconduct matters<br />
under the federal statute - can do that.<br />
Complainant also appears to imply that the respondent judge is biased<br />
against complainant and comments in passing that the judge may have relied on<br />
ex parte communications with opposing parties in the underlying suits in reaching<br />
the rulings complained of. These implied claims lack support of any kind, and are<br />
therefore dismissed pursuant to Misconduct Rule 4(c)(3) (directing dismissal of<br />
claims that are “wholly unsupported or lacking sufficient evidentiary support to<br />
raise an inference that some kind of cognizable misconduct has occurred”).<br />
Accordingly, this complaint is dismissed. The Circuit Executive is directed<br />
to transmit this order to complainant and a copy to the respondent judge. To seek<br />
review of this order, complainant must file a petition for review by the Judicial<br />
-2-<br />
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Council. As set out in the misconduct rules, the petition should be in the form of<br />
a letter, and need not include a copy of the original complaint or this order. See<br />
Misconduct Rule 6. The petition must be filed with the Office of the Circuit<br />
Executive, at the address set out in the rules, within 30 days of the date of the<br />
letter transmitting this order. Id.<br />
So ordered this 14th day of March, 20<strong>08</strong>.<br />
/s/ Robert H. Henry<br />
Honorable Robert H. Henry<br />
Chief Circuit Judge<br />
-3-<br />
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DJW:mmh<br />
SAMUEL K. LIPARI,<br />
IN THE UNITED STATES DISTRICT COURT<br />
FOR THE DISTRICT OF KANSAS<br />
Plaintiff,<br />
v. Case No. 07-2146-CM-DJW<br />
US BANCORP, NA, et al.,<br />
Defendant.<br />
SCHEDULING ORDER<br />
On January 11, 20<strong>08</strong>, pursuant to Fed. R. Civ. P. 16(b), the court conducted a telephone<br />
scheduling conference with the parties. 1<br />
Plaintiff appeared pro se. Defendants appeared<br />
through counsel Jay E. Heidrick and Mark A. Olthoff.<br />
After consultation with the parties, the court enters this scheduling order, summarized<br />
in the table that follows:<br />
1<br />
As used in this scheduling order, the term “plaintiff” includes plaintiffs as well as<br />
counterclaimants, cross-claimants, third-party plaintiffs, intervenors, and any other parties<br />
who assert affirmative claims for relief. The term “defendant” includes defendants as well<br />
as counterclaim defendants, cross-claim defendants, third-party defendants, and any other<br />
parties who are defending against affirmative claims for relief.<br />
O:\ECFDocs\Orders for Signature\07-2146 Sch Ord.wpd<br />
Exb 4<br />
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SUMMARY OF DEADLINES AND SETTINGS<br />
Event<br />
Deadline/Setting<br />
Plaintiff's settlement proposal 2/4/<strong>08</strong><br />
Defendants' settlement counter-proposal 2/18/<strong>08</strong><br />
Confidential settlement reports to magistrate judge,<br />
with identification of agreed-upon mediator or other<br />
ADR neutral<br />
Mediation or other ADR process completed<br />
Settlement conference with court<br />
3/3/<strong>08</strong><br />
N/A<br />
N/A<br />
Initial disclosures exchanged 1/15/<strong>08</strong><br />
All discovery completed 7/1/<strong>08</strong><br />
Early discovery completed<br />
N/A<br />
Experts disclosed by plaintiff 4/1/<strong>08</strong><br />
Experts disclosed by defendant 5/1/<strong>08</strong><br />
Rebuttal experts disclosed 6/2/<strong>08</strong><br />
Independent medical examinations<br />
Supplementation of disclosures<br />
N/A<br />
40 days before the deadline for<br />
completion of discovery<br />
Preliminary witness and exhibit disclosures 5/16/<strong>08</strong><br />
Jointly proposed protective order submitted to court 2/15/<strong>08</strong><br />
Motion and brief in support of proposed protective<br />
order (only if parties disagree about need for and/or<br />
scope of order)<br />
Motions to join additional parties or otherwise<br />
amend the pleadings<br />
Motions to dismiss for lack of personal jurisdiction,<br />
venue, propriety of the parties, or failure to state a<br />
claim<br />
All other potentially dispositive motions (e.g.,<br />
summary judgment)<br />
Motions challenging admissibility of expert<br />
testimony<br />
2/15/<strong>08</strong><br />
3/1/<strong>08</strong><br />
4/1/<strong>08</strong><br />
8/15/<strong>08</strong><br />
8/15/<strong>08</strong><br />
Comparative fault identification 3/1/<strong>08</strong><br />
Status conference<br />
Final pretrial conference<br />
N/A<br />
7/30/<strong>08</strong> @ 10:00 a.m.<br />
Proposed pretrial order due 7/23/<strong>08</strong><br />
Trial<br />
3/2/09 @ 1:30 p.m.<br />
O:\ECFDocs\Orders for Signature\07-2146 Sch Ord.wpd<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5740
PLAINTIFF’S REPLY TO DEFENDANTS’ MOTION TO DISMISS<br />
Comes now the plaintiff Samuel K. Lipari appearing pro se and makes the following response to the<br />
defendants’ second motion to dismiss the plaintiff’s initial and un-amended complaint.<br />
The plaintiff renews his objection to a second motion to dismiss where the Federal Rules of Civil<br />
Procedure permit only one. The defendants’ current dismissal is a prohibited second Rule 12 motion to<br />
dismiss. Palermo, Federal Pretrial Practice: Basic Procedure & Strategy 2001 states at page 21; “Rules<br />
12(g) and 12(h), read together, provide in general, there shall not be more than one Rule 12 motion to<br />
dismiss....All defenses and grounds “then available” shall be asserted in the one motion; certain defenses<br />
shall be asserted in the Rule 12 motion, or in the initial responsive pleading (or amendment thereof) under<br />
threat of waiver.”<br />
The plaintiff is also aware of this court’s disposition toward him and his claims embodied by the<br />
court’s January 24 th , 20<strong>08</strong> decision to over rule the Magistrate Judge’s case management schedule and<br />
require this answer by February 2, 20<strong>08</strong>.<br />
An impartial observer could find that the issuance of a minute order changing the schedule without<br />
accompanying documentation could prejudice a pro se defendant excluded from the electronic case<br />
management system.<br />
The plaintiff has no doubt as to what would have been in store for his claims or his future ability to<br />
enter the hospital supply market and compete against US Bancorp’s co-conspirator Novation LLC had he<br />
not made the deadline.<br />
I. Plaintiff's Complaint states colorable claims and demonstrates a plausible entitlement to relief:<br />
The defendants through their agents the law firm of Shughart Thomson & Kilroy, PC and the firm’s<br />
State of Missouri licensed attorneys Mark A. Olthoff KS # 70339, Andrew M. Demarea KS #16141, and<br />
Jay E. Heidrick KS #20770 have misrepresented to the court the content and words clearly on the face of<br />
the plaintiff’s complaint and have falsely stated the complaint does not state elements that it clearly does. 1<br />
1 The court would have been reversed on the most recent appeal for adopting Mark A. Olthoff KS # 70339,<br />
and Andrew M. Demarea KS #16141 repeated misrepresentations that the elements of the plaintiff’s<br />
antitrust and racketeering claims were not pled when in fact they were and appeared where the table of<br />
contents stated they were. The defense counsel were unable to support this court’s rulings in total.<br />
See Applt Br at pages 19-31: http://www.medicalsupplychain.com/pdf/Novation%20Appeal%20Brief.pdf<br />
Applee Br at http://www.medicalsupplychain.com/pdf/Novation%20&%20US%20Bank%20Reply%20Brief.pdf<br />
1<br />
Exb 5<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5741
UNITED STATES DISTRICT COURT<br />
FOR THE DISTRICT OF KANSAS<br />
MEDICAL SUPPLY CHAIN, INC., )<br />
(Through assignee Samuel K. Lipari) )<br />
SAMUEL K. LIPARI )<br />
Plaintiff, )<br />
v. ) Case No. 05-2299<br />
NOVATION, LLC )<br />
NEOFORMA, INC. )<br />
ROBERT J. ZOLLARS )<br />
VOLUNTEER HOSPITAL ASSOCIATION )<br />
CURT NONOMAQUE )<br />
UNIVERSITY HEALTHSYSTEM CONSORTIUM )<br />
ROBERT J. BAKER )<br />
US BANCORP, NA )<br />
US BANK )<br />
JERRY A. GRUNDHOFER )<br />
ANDREW CECERE )<br />
THE PIPER JAFFRAY COMPANIES )<br />
ANDREW S. DUFF )<br />
SHUGHART THOMSON & KILROY, P.C. )<br />
Defendants. )<br />
PLAINTIFF’S FED. R. CIV. P. 59(e), TO ALTER OR AMEND THE JUDGMENT<br />
AND ANSWER TO ORDER TO SHOW CAUSE<br />
Comes now the plaintiff Samuel K. Lipari in his individual capacity and as an assignee of all<br />
rights of <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. a dissolved Missouri corporation and respectfully submits this motion<br />
under Fed.R.Civ.P. 59(e), to alter or amend the judgment. The plaintiff seeks to alter or amend the court’s<br />
order striking the plaintiff’s motion to reopen the present action under F.R.Civ. P. Rule 60(b). The plaintiff<br />
also answer’s the court Show Cause Order.<br />
Statement of Facts<br />
1. The plaintiff filed a pro se motion on February 13, 20<strong>08</strong> for new trial on this court’s dismissal<br />
order denying the plaintiff’s pro se standing and dismissing the plaintiff’s federal claims with prejudice<br />
under F.R.Civ. P. Rule 60(b). See Exb 1 Motion for New Trial and Exb 2 Plaintiff’s Response to<br />
Defendant’s Opposition.<br />
2. The plaintiff filed his motion after this court recognized his standing to proceed pro se as the<br />
assignee of his dissolved corporation’s claims under Missouri State Law governing corporations in styled<br />
Lipari v. US Bancorp et al. Case no. 07-cv-02146-CM-DJW, the same case or controversy as Case No. 05-<br />
2299 as defined by Article III of the U.S. Constitution and 28 U.S.C. § 1367:<br />
“Missouri law does, however, allow a dissolved corporation to assign its claims to a third-<br />
1<br />
Exb. 7<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5742
party. See, e.g., Smith v. Taylor-Morley, Inc., 929 S.W.2d 918 (Mo. Ct. App. 1996) (upholding<br />
dissolved corporation’s written assignment of rights to a purchase contract). The assignee may sue<br />
to recover damages for the dissolved corporation’s claims. Id. (holding assignee of dissolved<br />
corporation’s rights under a purchase contract could sue for injuries to dissolved corporation for<br />
breach of the purchase contract). Here, plaintiff alleges that he is the assignee of all rights and<br />
interests of <strong>Medical</strong> <strong>Supply</strong>, including the claims in this lawsuit. Accepting as true all material<br />
allegations of the complaint and construing the complaint in favor of plaintiff, the court finds that<br />
plaintiff has met his burden at this stage of the proceeding. Defendant’s motion is denied with<br />
respect to standing.”<br />
Order signed by Judge Carlos Murguia recognizing plaintiff’s standing as assignee of MSC’s<br />
claims. Exb 3 Order Lipari v. US Bancorp et al. Case no. 07-cv-02146-CM-DJW at page 2.<br />
3. This court’s order recognizing the plaintiff’s status as assignee of his federal claims occurred after<br />
this court’s decision on August 7, 2006, striking four motions filed by the plaintiff.<br />
4. A reasonable conclusion can be drawn by a reviewing court that the plaintiff’s materially identical<br />
arguments supporting pro se standing as an assignee of MSC’s claims produced two different results<br />
because of the intervening decision of the US Supreme Court in Erickson v. Pardus, No. 06-7317<br />
(U.S. 6/4/2007) (2007) overruling the Tenth Circuit and requiring facts pled in a complaint to be accepted<br />
as true.<br />
5. The February 13, 20<strong>08</strong> Rule 60(b) filing was a motion and not a pleading.<br />
6. This court ordered the plaintiff’s F.R.Civ. P. Rule 60(b) motion struck without a hearing.<br />
7. This court’s order to show cause threatens sanctions against the plaintiff that violate the court’s<br />
authority and jurisdiction under the Federal Rules of Civil Procedure.<br />
8. The court’s void order striking the plaintiff’s Rule 60(b) if not reversed is a participation in the<br />
defendants’ unlawful actions to deprive the plaintiff of the representation of an unimpaired attorney<br />
documented at length in the plaintiff’s complaint dismissed by the court.<br />
9. Judge Carlos Murguia’s repeated sanctioning of the plaintiff for being correct on the application of<br />
controlling law of this circuit and in direct contradiction of the express language of Congress providing<br />
multiple private rights of action in the USA PATRIOT Act and in contradicting the US Supreme Court on<br />
the lack of preclusion for subsequent antitrust and RICO acts in the <strong>Medical</strong> <strong>Supply</strong> litigation has the<br />
foreseeable ad terrorem effect of depriving the plaintiff of counsel and of capital to enter the market for<br />
hospital supplies monopolized by the Novation LLC cartel.<br />
2<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5743
MEMORANDUM IN SUPPORT<br />
The plaintiff’s motion is within ten days of the court’s order striking the plaintiff's Rule 60(b)<br />
motion and therefore is properly a motion pursuant to Fed.R.Civ.P. 59(e), to alter or amend the judgment:<br />
“A motion to alter or amend presents the court with the opportunity to rectify manifest errors of law<br />
or fact and to review evidence newly discovered. White v. New Hampshire Dep't of Employment<br />
Sec., 455 U.S. 445, 450-51, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982); Brown v. Presbyterian<br />
Healthcare Servs., 101 F.3d 1324, 1332 (10th Cir. 1996), cert. denied, ___ U.S. ___, 117 S.Ct.<br />
1461, 137 L.Ed.2d 564 (1997); Barrett v. Fields, 941 F.Supp. 980, 984-85 (D.Kan. 1996).”<br />
Fields v. Atchison, Topeka, and Santa Fe Railway Company, 5 F.Supp.2d 1160 at 1161 (D. Kan., 1998).<br />
The plaintiff has conformed to Rule 7.3 of the local rules for the District of Kansas.<br />
A Rule 59(e) motion may be granted if any of the following three conditions are presented to the<br />
court: (1) an intervening change in the controlling law; (2) the availability of new evidence; or (3) the need<br />
to correct clear error or prevent manifest injustice. Brumark Corp. v. Samson Resources Corp., 57 F.3d<br />
941, 948 (10th Cir.1995).<br />
The plaintiff seeks relief from the striking of his motion for new trial based on (3) “the need to<br />
correct clear error or prevent manifest injustice.”<br />
The plaintiff answer’s this court’s Show Cause Order by citing to controlling case law that the<br />
plaintiff’s Rule 60(b) motion is proper.<br />
I. Standard of review<br />
The Tenth Circuit will review the district court's denial of a Rule 60(b)(6) motion for abuse of<br />
discretion. Cashner v. Freedom Stores, Inc., 98 F.3d 572, 576 (10th Cir.1996) Simply stated, for the<br />
appeals court to find an abuse of district court's discretion and reverse, the appellate court must have a<br />
definite and firm conviction that the district court made a clear error of judgment or exceeded the bounds of<br />
permissible choice in the circumstances. Moreover, relief under Rule 60(b) is discretionary and is<br />
warranted only in exceptional circumstances. Van Skiver v. United States, 952 F.2d 1241, 1243 (10th<br />
Cir.1991), cert. denied, 506 U.S. 828, 113 S.Ct. 89, 121 L.Ed.2d 51 (1992).<br />
Denial of the plaintiff’s Motion for New Trial over changes in law since the dismissal of the<br />
plaintiff’s federal claims can be appealed. See John E. Smith's Sons Co. v. Lattimer Foundry & Mach. Co.,<br />
239 F.2d 815 at 816-817 (3rd Cir., 1956).<br />
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II.<br />
Clear Errors of the Court<br />
The court lacks the authority or power to strike the plaintiff’s motion under Rule 12(f) and<br />
Rule 37. The striking violates the plaintiff's fourteenth amendment right to a hearing, and a judgment of<br />
sanctions in such a case would be void for want of jurisdiction.<br />
A. Plaintiff’s Motion For New Trial Properly Before The Court<br />
The plaintiff sought a new trial on the order dismissing his claims based on intervening<br />
decisions by this court and the US Supreme Court, including Judge Carlos Murguia’s determination he<br />
had standing as the assignee of <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>’s Claims in this same case or controversy.:<br />
“A Rule 60(b) motion addresses the district court's judgment and must be presented<br />
initially to the district court. 12 James Wm. Moore, et al., Moore's Federal Practice § 60.60[1] and<br />
authorities cited therein. Thus, the Respondent's Rule 60(b) motion challenges a judgment of this<br />
Court and is properly before this Court.”<br />
Mitchell v. Rees, 430 F.Supp.2d 717 at 721 (M.D. Tenn., 2006). Also “…a motion might contend<br />
that a subsequent change in substantive law is a "reason justifying relief," Fed. Rule Civ. Proc. 60(b)(6),<br />
from the previous denial of a claim. E.g., Dunlap v. Litscher, 301 F.3d 873, 876 (C.A.7 2002).” Mitchell v.<br />
Rees, id 430 F.Supp.2d 717 at 722 (M.D. Tenn., 2006).<br />
Under Rule 60(b), a court may set aside a default judgment "on motion and under such terms as<br />
are just" for any of the following reasons:<br />
“(1) mistake, inadvertence, surprise, or excusable neglect;(2) newly discovered evidence which by<br />
due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3)<br />
fraud, (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other<br />
misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied,<br />
released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise<br />
vacated, or it is no longer equitable that the judgment should have prospective application; or (6) or<br />
any other reason justifying relief from the operation of the judgment. Fed.R.Civ.P. 60(b).”<br />
In re Wallace, 298 B.R. 435 at 439 (B.A.P. 10th Cir., 2003)<br />
The difference in rulings regarding the plaintiff’s standing to pursue his claims pro se are exactly<br />
the exceptional or “extraordinary circumstances” in which a New Trial under Rule 60(b) is appropriate:<br />
“Moreover, an inconsistent application of the law that deprives a party of a right<br />
accorded to other similarly situated parties presents, "extraordinary circumstances"<br />
warranting post-judgment relief, including under Rule 60(b)(6). See e.g., Gondeck v. Pan<br />
American World Airways Inc., 382 U.S. 25, 26-27, 86 S.Ct. 153, 15 L.Ed.2d 21 (1965)(granting<br />
post-judgment relief on rehearing, in the interest of justice to remedy a misinterpretation of the<br />
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law); Cincinnati Insurance Co. v. Byers, 151 F.3d 574, 580 (6th Cir.1998)(extraordinary<br />
circumstances based upon a post-judgment change in the law); Overbee v. Van Waters & Rogers,<br />
765 F.2d 578, 580 (6th Cir.1985)(finding extraordinary circumstances and granting relief from<br />
judgment based on intervening decision of Ohio Supreme Court); Jackson v. Sok, 65 Fed. Appx.<br />
46, 49 (6th Cir.2003)(per curiam)(upholding grant of Rule 60(b) motion based on intervening<br />
change in the applicable law).” [Emphasis added]<br />
Mitchell v. Rees, 430 F.Supp.2d 717 at 725 (M.D. Tenn., 2006).<br />
This action is the same case or controversy currently before the court in Lipari v. US Bancorp et<br />
al. Case no. 07-cv-02146-CM-DJW under Article III of the U.S. Constitution and 28 U.S.C. § 1367 and<br />
which this court continued to exercise jurisdiction over even during the plaintiff’s appeal as this court also<br />
did during the interlocutory appeal in <strong>Medical</strong> <strong>Supply</strong> I.<br />
By dismissing <strong>Medical</strong> <strong>Supply</strong>’s state claims without prejudice, a determination not opposed or<br />
appealed at the time by the defendants, the trial court elected not to make a preclusive final judgment: “A<br />
final judgment embodying the dismissal would eventually have been entered if the state claims had been<br />
later resolved by the court.” Avx Corp. v. Cabot Corp., 424 F.3d 28 at pg 32 (Fed. 1st Cir., 2005). As a non-<br />
final judgment, the Memorandum & Order granting dismissal was a mere interim order. Id.<br />
B. Court Lacked Power to Strike Plaintiff’s Motion Under Rule 12(f)<br />
The court lacks the authority or power to strike the plaintiff’s motion under Rule 12(f). Rule 12(f)<br />
of the Federal Rules of Civil Procedure ("Rule 12(f)") provides that a "court may order stricken from any<br />
pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."<br />
Fed.R.Civ.P. 12(f). According to the language of Rule 12(f), motions to strike apply only to pleadings and<br />
not to motions. See Knight v. United States. 845 F. Supp. 1372, 1374 (D. Ariz. 1993); Krass v. Thomson-<br />
CGR Med. Corp., 665 F. Supp. 844, 847 (N.D. Cal. 1987).<br />
It is clearly established that the plaintiff’s motion was not a pleading the court could strike:<br />
“On its own initiative or on a party's motion, the court may strike from a pleading any<br />
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter in order to<br />
avoid the time, effort, and expense necessary to litigate spurious issues. FED.R.CIV.P. 12(f);<br />
Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993), rev'd on other grounds, 510 U.S. 517,<br />
114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). A "pleading" includes a complaint, answer, reply to a<br />
counterclaim, answer to a cross-claim, third-party complaint, or third-party answer. FED.R.CIV.P.<br />
7(a). Motions to strike are a drastic remedy, which courts generally disfavor. Stabilisierungsfonds<br />
Fur Wein v. Kaiser Stuhl Wine Distribs. Pty. Ltd., 647 F.2d 200, 201 (D.C.Cir.1981) (citing 5 C<br />
FED. PRAC. & PROC. 2d § 1380 at 783); Morse v. Weingarten, 777 F.Supp. 312, 319<br />
(S.D.N.Y.1991); Mirshak v. Joyce, 652 F.Supp. 359, 370 (N.D.Ill.1987); Schramm v. Krischell, 84<br />
F.R.D. 294, 299 (D.Conn.1979).”<br />
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Naegele v. Albers, 355 F.Supp.2d 129 (D.D.C., 2005).<br />
Judge Carlos Murguia is responsible for knowing this is the controlling law of this circuit:<br />
“Moreover, there is no provision in the Federal Rules of Civil Procedure for motions to<br />
strike motions and memoranda; only motions to strike unsigned papers under Rule 11, third-party<br />
claims under Rule 14(a), and certain matters in pleadings under Rule 12(f) are contemplated by the<br />
Federal Rules of Civil Procedure. Motions and memoranda are not included within the definition of<br />
"pleading" under F.R.C.P. 7(a). See James Moore & Jo Desha Lucas, 2A Moore's Federal Practice p<br />
12.21 at 12-164 (Matthew Bender, 2d ed 1991) ("a Rule 12(f) motion to strike is not appropriate<br />
with regard to affidavits, parties, or any other matter other than that contained in the actual<br />
pleadings").”<br />
Searcy v. Social Sec. Admin.(Unpublished), 956 F.2d 278 (C.A.10 (Utah), 1993). See Exb. 4<br />
C. Court Lacked Power to Strike Plaintiff’s Motion Under Rule 37<br />
The other source for a court’s striking authority under the Federal Rules of Civil Procedure is Rule<br />
37. Rule 37(b), Federal Rules of Civil Procedure, authorizes courts to employ various sanctions, including<br />
"striking out pleadings or parts thereof ... or rendering a judgment by default," Rule 37(b)(2)(C), when "a<br />
party ... fails to obey an order to permit or provide discovery, including an order made under subdivision<br />
(a) of this rule," Rule 37(b)(2). But, there has been no discovery in this case or controversy (the defendants<br />
have not even produced requested documents in the continuing state contract claims litigation).<br />
In similar circumstances as this case, the US Supreme Court found a trial court could not strike a<br />
filing to punish a party. In Hovey v. Elliott, 167 U.S. 409, 413, 444, 17 S.Ct. 841, 843, 854, 42 L.Ed. 215<br />
(1897), the court held that a court may not strike an answer and enter a default merely to punish a contempt<br />
of court. The contempt involved in that case was the failure to pay into the registry of the court a fund<br />
which was the subject of the litigation. The Court held that the entry of default in those circumstances<br />
violated the defendant's fourteenth amendment right to a hearing, and held further that the judgment in such<br />
a case would be "void for want of jurisdiction, and may therefore be collaterally attacked," id. at 444, 446-<br />
47, 17 S.Ct. at 854, 855.<br />
Hovey v. Elliott was subsequently limited by the decision Hammond Packing Co. v. Arkansas, 212<br />
U.S. 322, 349-54, 29 S.Ct. 370, 379-81, 53 L.Ed. 530 (1909). Hammond only held, however, that a court<br />
had the power to strike an answer and enter default when a party failed to produce evidence. "(T)he<br />
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generating source of the power (to strike the answer and enter default) was the right to create a presumption<br />
flowing from the failure to produce." Id. at 351, 29 S.Ct. at 380. See also Norman v. Young :<br />
“Hammond pared the Hovey decision by holding that a court could properly strike an answer and<br />
enter default judgment under circumstances where a party fails to produce documents as ordered.<br />
The court stated that trial courts have inherent power to presume the bad faith and untruth of an<br />
answer where the proof was suppressed provided it was essential to the disposition of the case.”<br />
Norman v. Young, 422 F.2d 470 at 473 (10th Cir., 1970)<br />
Here the court was not resolving a dispute over discovery which has not yet occurred in the<br />
<strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> litigation and could make no competent judgments on facts in dispute.<br />
III.<br />
Court’s Order Striking Rule 60(b) is Void<br />
The court’s denial or striking of plaintiff’s Rule 60(b) motion deprives the plaintiff of an important<br />
federal right, warranting a certificate of probable cause. See Smith, 50 F.3d at 821 (citing Barefoot v.<br />
Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)).<br />
This court’s order striking the plaintiff’s Rule 60(b) motion is void:<br />
“For a judgment to be void under Rule 60(b)(4), it must be determined that the rendering court was<br />
powerless to enter it. If found at all, voidness usually arises for lack of subject matter jurisdiction or<br />
jurisdiction over the parties. It may also arise if the court's action involves a plain usurpation of<br />
power or if the court has acted in a manner inconsistent with due process of law. 11 In the interest of<br />
finality, the concept of setting aside a judgment on voidness grounds is narrowly restricted. ”<br />
V. T. A., Inc. v. Airco, Inc., 597 F.2d 220 at 224-225 (C.A.10 (Colo.), 1979)<br />
Judge Carlos Murguia has usurped power denied him under the Federal Rules of Civil<br />
Procedure. The plaintiff has the clearly established right to seek relief from any post judgment order<br />
including an award of attorney fees that might result from the court’s previous sanctions or threatened<br />
show cause sanctions:<br />
“Here, the judgment against Pinckney was void. Thus, Pinckney was entitled to restitution under<br />
Section 60(b)(4). Jordan v. Gilligan, 500 F.2d 701, 704 (6th Cir.1974), cert. denied, 421 U.S. 991,<br />
95 S.Ct. 1996, 44 L.Ed.2d 481 (1975) (a Rule 60(b) motion is proper where appellants failed to<br />
object to an award of attorney's fees and expenses until after the judgment is entered and execution<br />
proceedings were undertaken); Vander Zee v. Karabatsos, 683 F.2d 832 (4th Cir.1982) (garnisher<br />
entitled to restitution of payment made on void judgment).”<br />
Watts v. Pinckney, 752 F.2d 406 at 410 (C.A.9 (Ariz.), 1985).<br />
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IV.<br />
Court Must Vacate Strike and Show Cause Order<br />
Judge Carlos Murguia unlawfully instructed the Kansas District Court Clerk to violate the<br />
established policies of the Kansas District Court and not to give the plaintiff notice of its present Show<br />
Cause Order through service by mail or by emailing the order to the plaintiff’s email address included<br />
by the plaintiff in every filing expressly for the purpose of taking property from the plaintiff without<br />
Due Process and to violate his oath of office and become a participant in the defendants’ conspiracy to<br />
artificially inflate hospital supplies through the Novation LLC cartel and to commit racketeering acts to<br />
extrinsically deprive the plaintiff of the opportunity to present hiss evidence.<br />
Judge Carlos Murguia unlawfully instructed the Kansas District Court Clerk not to mail the<br />
plaintiff notice after the plaintiff observed that the failure to give notice of a minute order accelerating<br />
the deadline to respond to the defendants’ motion to dismiss in Lipari v. US Bancorp et al. Case no. 07-<br />
cv-02146-CM-DJW would have similarly deprived the plaintiff of his property. It is now recognized<br />
Judge Carlos Murguia unlawfully instructed the Kansas District Court Clerk to violate the established<br />
policies of the Kansas District Court and not to give the plaintiff notice of its Minute Order through<br />
service by mail or by email in Lipari v. US Bancorp et al. Case no. 07-cv-02146-CM-DJW.<br />
When Judge Carlos Murguia acts overtly to deny the plaintiff of Due Process whether by<br />
violating the Federal Rules of Civil Procedure and striking the plaintiff’s Rule 60(b) Motion or by<br />
depriving the plaintiff of notice and an opportunity to oppose sanctions, Judge Carlos Murguia’s orders<br />
are void and must be set aside as a consequence of the plaintiff’s present Motion for Reconsideration.<br />
"A void judgment is a legal nullity and a court considering a motion to vacate has no discretion<br />
in determining whether it should be set aside." 7 J. Moore, Moore's Federal Practice, p 60.25 at 301 (2d<br />
ed. 1973). See also Barkley v. Toland:<br />
"Rule 60(b)(4) authorizes relief from void judgments. Necessarily a motion under this part<br />
of the rule differs markedly from motions under the other clauses of Rule 60(b). There is no<br />
question of discretion on the part of the court when a motion is under Rule 60(b)(4). Nor is there<br />
any requirement, as there usually is when default judgments are attacked under Rule 60(b), that the<br />
moving party show that he has a meritorious defense. Either a judgment is void or it is valid.<br />
Determining which it is may well present a difficult question, but when that question is resolved, the<br />
court must act accordingly.”<br />
Barkley v. Toland, 7 Kan.App.2d 625, 646 P.2d 1124 at 1127-1128 (Kan. App., 1982).<br />
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Judge Carlos Murguia’s prior decisions in this litigation appear to be the product of similar<br />
unlawful conduct against the plaintiff who was sanctioned previously in the order dismissing his federal<br />
claims on conduct subsequent to <strong>Medical</strong> <strong>Supply</strong> I that violated clearly established law on preclusion:<br />
“The preclusion of claims that "could have been brought" does not include claims that<br />
arose after the original complaint was filed in the prior action, unless the plaintiff actually asserted<br />
the claim in an amended pleading, but res judicata does not bar the claim simply because the<br />
plaintiff elected not to amend his complaint. Pleming v. Universal-Rundle Corp., 142 F.3d 1354,<br />
1357 (11th Cir. 1998). This is true even if the plaintiff discussed the facts supporting the subsequent<br />
claim in support of his claims in the prior case. Id. at 1358-59.”<br />
20<strong>08</strong>).<br />
Sherrod v. School Board of Palm Beach County, No. 07-13747 (11th Cir. 4/7/20<strong>08</strong>) (11th Cir.,<br />
Judge Carlos Murguia violated the show cause notice requirement. The Rule to Show Cause<br />
requires a reasonable opportunity to respond. “Under Federal Rule of Civil Procedure 11(c), a court may,<br />
after notice and reasonable opportunity to respond, impose an "appropriate sanction" upon attorneys, law<br />
firms, or parties if the court finds they have violated subdivision (b) of that Rule. Fed.R.Civ.P. 11(c). Rule<br />
11(b) provides that by presenting a motion to the court, the attorney is certifying that the document (1) "is<br />
not being presented for any improper purpose, such as to harass;" and (2) the legal claims made are<br />
nonfrivolous. Fed.R.Civ.P. 11(b). An attorney's conduct is evaluated objectively when it is challenged<br />
under Rule 11: the applicable standard is that of the reasonable attorney admitted to practice before this<br />
court. See Adamson v. Bowen, 855 F.2d 668, 673 (10th Cir. 1988).<br />
CONCLUSION<br />
Whereas for the above reasons, the plaintiff respectfully requests that the court grant the plaintiff<br />
relief from the order striking the plaintiff’s Motion to reopen its Memorandum and Order dismissing the<br />
plaintiff’s claims, and from the Order to Show Cause recognizing the plaintiff had standing and properly<br />
filed a motion for New Trial.<br />
Respectfully Submitted,<br />
S/ Samuel K. Lipari<br />
____________________<br />
Samuel K. Lipari<br />
297 NE Bayview<br />
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Lee's Summit, MO 64064<br />
816-365-1306<br />
saml@medicalsupplychain.com<br />
Pro se<br />
CERTIFICATE OF SERVICE<br />
I certify I have caused a copy to be sent via electronic case filing to the undersigned opposing counsel on<br />
4/8/<strong>08</strong>.<br />
Mark A. Olthoff, Esq.,<br />
Jay E. Heidrick, Esq.<br />
Shughart Thomson & Kilroy, P.C.<br />
Twelve Wyandotte Plaza<br />
120 W. 12th Street<br />
Kansas City, MO 64105<br />
Stephen N. Roberts, Esq.<br />
Natausha Wilson, Esq. Nossaman,<br />
Guthner, Knox & Elliott<br />
34th Floor<br />
50 California Street<br />
San Francisco, CA 94111<br />
Bruce Blefeld, Esq.<br />
Kathleen Bone Spangler, Esq.<br />
Vinson & Elkins L.L.P.<br />
2300 First City Tower<br />
1001 Fannin<br />
Houston, TX 77002<br />
via email<br />
jheidrick@stklaw.com<br />
molthoff@stklaw.com<br />
ademarea@stklaw.com<br />
S/ Samuel K. Lipari<br />
____________________<br />
Samuel K. Lipari<br />
10<br />
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Case 2:05-cv-02299-CM-GLR Document 78 Filed 03/07/2006 Page 24 of 30<br />
and attorneys’ fees reasonably incurred because of such conduct.” 28 U.S.C. § 1927. Sanctions may be<br />
imposed under § 1927 “for conduct that, viewed objectively, manifests either intentional or reckless<br />
disregard of the attorney’s duties to the court.” Braley v. Campbell, 832 F.2d 1504, 1512 (10 th Cir.<br />
1987). Like Rule 11, the court must apply an objective standard, and subjective bad faith is not a necessary<br />
showing for application of § 1927 sanctions. Because § 1927 is penal in nature, an award should only be<br />
made “‘in instances evidencing a serious and standard disregard for the orderly process of justice’” and the<br />
court must be aware of the “need to ensure that the statute does not dampen attorneys’ zealous<br />
representation of their clients’ interests.” Ford Audio Video Sys., Inc. v. AMX Corp., Inc., 1998 WL<br />
658386, at *3 (10 th Cir. Sept. 15, 1998) (quoting Dreiling v. Peugeot Motors of Am., Inc., 768 F.2d<br />
1159, 1165 (10 th Cir. 1985) (internal quotations omitted)).<br />
The court notes that, pursuant to Rule 11(c)(1)(A), both groups of defendants requesting sanctions<br />
gave plaintiff at least twenty-one days notice before filing their motions for sanctions. “The basic<br />
requirements of due process with respect to the assessment of costs, expenses, or attorney’s fees are notice<br />
that such sanctions are being considered by the court and a subsequent opportunity to respond.” Braley, at<br />
1514. Plaintiff responded to defendants’ motions by arguing that claim and issue preclusion do not bar<br />
plaintiff’s claims, and that defendants violated Rule 11 and § 1927 by requesting sanctions. Plaintiff chose<br />
not to withdraw or amend its complaint.<br />
The court finds that sanctions against plaintiff in the form of attorney fees and costs are appropriate<br />
and necessary pursuant to both Rule 11 and § 1927 for four reasons. First, the mere fact that plaintiff filed a<br />
nearly unintelligible 115 page complaint, which the court already found violates Rule 8, suggests that<br />
plaintiff’s complaint, and the instant suit as a whole, was brought for the purpose of harassing defendants or<br />
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Case 2:05-cv-02299-CM-GLR Document 78 Filed 03/07/2006 Page 25 of 30<br />
the court, causing unnecessary delay and/or needlessly increasing the cost of litigation in violation of Rule<br />
11(b)(1). Second, as discussed above, not one of plaintiff’s federal claims supports a viable claim for which<br />
relief can be granted pursuant to Rule 12(b)(6). As such, plaintiff’s complaint consists of frivolous claims in<br />
violation of Federal Rule of Civil Procedure 11(b)(2). Moreover, each of plaintiff’s federal claims lack the<br />
evidentiary support needed to avoid violating Rule 11(b)(3). Third, plaintiff’s insistence on re-litigating<br />
claims barred by claim preclusion “unreasonably and vexatiously” “multiplies the proceedings” in violation of<br />
§ 1927.<br />
Fourth, and most importantly, plaintiff failed to heed the court’s previous admonitions and sanctions,<br />
choosing instead to proceed with the instant suit and attempt another bite at the proverbial apple. Plaintiff’s<br />
previous two claims in this court were dismissed for failure to state a claim pursuant to Rule 12(b)(6).<br />
<strong>Medical</strong> <strong>Supply</strong> I, 2003 WL 21479192, at *9; <strong>Medical</strong> <strong>Supply</strong> II, 2004 WL 956100, at *5. In <strong>Medical</strong><br />
<strong>Supply</strong> I, the undersigned judge advised plaintiff’s counsel to “take greater care in ensuring that the claims he<br />
brings on his clients’ behalf are supported by the law and the facts.” Id. at *6. In the same Order, the<br />
undersigned judged found plaintiff’s allegations “completely divorced from rational thought.” Id. at *8. In<br />
<strong>Medical</strong> <strong>Supply</strong> II, the undersigned judge noted that “at the most fundamental level, plaintiff’s antitrust<br />
claims fail.” 2004 WL 956100, at *3.<br />
Both prior dismissals were affirmed by the Tenth Circuit. <strong>Medical</strong> <strong>Supply</strong> I, 112 Fed. Appx. at<br />
731-32; <strong>Medical</strong> <strong>Supply</strong> II, 144 Fed. Appx. at 716. In <strong>Medical</strong> <strong>Supply</strong> I, the Tenth Circuit ordered<br />
plaintiff to show cause why sanctions should not be imposed. 112 Fed. Appx. at 731-32. The undersigned<br />
judge imposed attorney fees totaling $23,956 and double costs as a sanction against Mr. Landrith. <strong>Medical</strong><br />
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Case 2:05-cv-02299-CM-GLR Document 78 Filed 03/07/2006 Page 26 of 30<br />
<strong>Supply</strong> I, 2005 WL 2122675, at *1. In <strong>Medical</strong> <strong>Supply</strong> II, the Tenth Circuit reversed and remanded on<br />
the issue of sanctions against plaintiff, and the issue of sanctions remains pending. 144 Fed. Appx. at 716<br />
Plaintiff and its counsel have had plenty of warning about filing frivolous claims from both this court<br />
and the Tenth Circuit. But plaintiff persisted, filing a third lawsuit against many of the same defendants and<br />
alleging many of the same claims. Enough is enough. See Brooks v. Couchman, 2006 WL 137415, at *1<br />
(10 th Cir. Jan. 19, 2006) (affirming the district court’s dismissal of plaintiff’s third attempt at the same<br />
argument, stating that “we have expended valuable court resources on at least two occasions dealing with<br />
[plaintiff] and his various meritless theories. We repeat our sentiment . . . : ‘We will spend no more judicial<br />
time or resources addressing his frivolous claims.’” (internal citation omitted)); Sweeney v. Resolution Trust<br />
Corp., 16 F3d 1, 6-7 (1 st Cir. 1994) (finding that the district court did not abuse its discretion in imposing<br />
sanctions on plaintiffs for filing a third and “repetitive” motion to remand when the court had previously<br />
denied two “almost identical motions and made detailed findings of fact”).<br />
The court may impose sanctions against plaintiff, plaintiff’s counsel, or against both with joint and<br />
several liability. White, 9<strong>08</strong> F.2d at 685-86. However, “the sanctioning of a party requires specific findings<br />
that the party was aware of the wrongdoing.” Id. at 685 (citations omitted); Barrett v. Tallon, 30 F.3d<br />
1296, 1303 (10 th Cir. 1993) (“Thus, in the case of a frivolously pleaded RICO claim, it seems that the court<br />
should sanction the responsible attorneys rather than the plaintiffs, unless it finds that the plaintiffs insisted,<br />
against the advice of counsel, that the RICO claim be asserted, or that the plaintiffs had a sufficient<br />
understanding of the nature, elements, and limitations of the attempted RICO claim to independently evaluate<br />
its applicability to the alleged facts.”).<br />
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Certainly plaintiff’s former counsel, Bret D. Landrith, is culpable. Mr. Landrith was the attorney of<br />
record when each of the sanctionable motions were filed, and Mr. Landrith signed and authored the<br />
complaint and each of the motions before the court. Nonetheless, sanctions against plaintiff are also<br />
appropriate for two reasons. First, plaintiff’s CEO and sole shareholder, Samuel Lipari, takes responsibility<br />
for the decisions to knowingly bring the instant lawsuit after the result of plaintiff’s previous attempts at<br />
litigation. For instance, Mr. Lipari’s affidavit, entitled “Affidavit of Sam Lipari on The Unsuitability of<br />
Transfer,” states:<br />
I chose to bring this new action in Missouri District court because I have a<br />
responsibility to <strong>Medical</strong> <strong>Supply</strong>’s stakeholders . . . to adjudicate these claims.<br />
I brought two earlier and related actions to Kansas District court based on the<br />
advice of my counsel. I have witnessed first hand that no decision or outcome in<br />
either case including from the Tenth Circuit Court of Appeals had any<br />
relationship to the pleadings of my company or applicable law. I make this<br />
determination based on my considerable personal experience as a clerk and<br />
researcher for a Missouri legal firm and upon discussion with what I believe are<br />
the foremost healthcare antitrust authorities in our nation.<br />
(Doc. 30, exh. 1). Mr. Lipari’s affidavit continues with a litany of conspiracy theories involving defendants,<br />
this court, and other government agencies and employees. Significantly, however, Mr. Lipari’s affidavit also<br />
discusses numerous instances when he actively participated in prior and current litigation. Mr. Lipari’s<br />
affidavit also discusses attending one of Mr. Landrith’s disciplinary conferences. Thus, Mr. Lipari was wellaware<br />
of the legal arguments and allegations being brought by his attorney, as well as the disciplinary<br />
allegations against Mr. Landrith prior to his disbarment. Even so, plaintiff chose to continue vigorously<br />
litigating the instant case. Second, after Mr. Landrith was disbarred, plaintiff chose to retain new counsel<br />
and continue litigating this case. Therefore, sanctioning plaintiff as well as Mr. Landrith serves to deter both<br />
from future frivolous filings.<br />
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In sum, the court finds that defendants’ reasonable attorney fees and costs against plaintiff and Mr.<br />
Landrith jointly and severally is the minimum amount of sanctions necessary to “adequately deter the<br />
undesirable behavior.” White v. Gen. Motors, 977 F.2d 499, 502 (10 th Cir. 1992) (internal quotations and<br />
citations omitted).<br />
E. Plaintiff’s Motion for Clarification of Order in Case No. 03-2324 (Doc. 45)<br />
Plaintiff’s motion for clarification seems to request this court to clarify its ruling in a separate case,<br />
case number 03-2324, which found that plaintiff’s request to consolidate case number 03-2324 with the<br />
instant case is moot. Case number 03-2324 was closed as of February 13, 2004, with attorney fees the<br />
only remaining issue. The court need not address this motion for two reasons. First, plaintiff has previously<br />
requested the court to “clarify” its decision in case number 03-2324, and the court found plaintiff’s request<br />
moot in light of the posture of the case. Second, plaintiff’s instant case will soon be closed, as the instant<br />
Memorandum and Order’s holdings dismiss plaintiff’s entire complaint. Therefore, the issue of whether to<br />
consolidate two closed cases is a moot one.<br />
IT IS THEREFORE ORDERED that defendant Robert Zollars’ Motion to Dismiss for Lack of<br />
Personal Jurisdiction (Doc. 2); Defendant Neoforma, Inc.’s Motion to Dismiss, [sic] Complaint, or<br />
Alternatively to Require Amendment, Pursuant to F.R.C.P. Rules 8 and 9 (Doc. 4); Defendants US<br />
Bancorp, U.S. Bank National Association, Piper Jaffray Companies, Jerry A. Grundhofer, Andrew Cesare<br />
and Andrew S. Duffs’ Motion to Transfer, Dismiss and/or Strike (Doc. 6); Defendants Curt Nonomaque<br />
and Robert Baker’s Motion to Dismiss Plaintiff’s Complaint for Lack of Personal Jurisdiction and for Failure<br />
to State a Claim (Doc. 11); Defendant Shughart Thomson & Kilroy, P.C.’s Motion to Transfer, Dismiss<br />
and/or Strike (Doc. 13); Defendants US Bancorp, U.S. Bank National Association, Piper Jaffray<br />
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S.W.2d 171, 176 (Mo. App. E.D. 1993). Therefore, even though <strong>Medical</strong> <strong>Supply</strong> was dissolved, its<br />
corporate existence continues for purposes of proceeding with this litigation. <strong>Medical</strong> <strong>Supply</strong><br />
remains the sole plaintiff in this case.<br />
Moreover, Mr. Lipari cannot proceed pro se on behalf of <strong>Medical</strong> <strong>Supply</strong> because a pro se<br />
individual may not represent a corporation. See Nato Indian Nation v. State of Utah, 76 Fed. Appx.<br />
854, 856 (10 th Cir. 2003) (“Individuals may appear in court pro se, but a corporation, other business<br />
entity, or non-profit organization may only appear through a licensed attorney.”) (citations omitted).<br />
The court also finds that Mr. Lipari may not substitute himself for <strong>Medical</strong> <strong>Supply</strong>. Federal<br />
Rule of Civil Procedure 25(c), which governs the procedural substitution of a party after a transfer of<br />
interest, states: “In case of any transfer of interest, the action may be continued by or against the<br />
original party, unless the court upon motion directs the person to whom the interest is transferred to<br />
be substituted in the action.” Fed. R. Civ. P. 25(c) (emphasis added). As evidenced by the plain<br />
language of Rule 25(c), the court has discretion to allow Mr. Lipari to substitute. Prop-Jets, Inc. v.<br />
Chandler, 575 F.2d 1322, 1324 (10 th Cir. 1978). The court declines to exercise its discretion,<br />
however, because this case has been dismissed, and substitution will not change that outcome.<br />
Mr. Lipari also argues that because the court sanctioned him personally, the court should<br />
allow him to represent himself pro se. Mr. Lipari is mistaken. The court sanctioned <strong>Medical</strong> <strong>Supply</strong>,<br />
not Mr. Lipari. Although the court discussed Mr. Lipari’s personal involvement in the litigation in its<br />
ruling opposing sanctions against plaintiff and plaintiff’s counsel, it did so for the purpose of<br />
demonstrating plaintiff’s culpability. It is irrelevant that Mr. Lipari, as <strong>Medical</strong> <strong>Supply</strong>’s sole<br />
shareholder, is ultimately liable for plaintiff’s sanctions.<br />
For the above-mentioned reasons, the court strikes each of Mr. Lipari’s pending motions,<br />
including Documents 80, 92, 95 and 102. Consistent with this ruling, the court cautions Mr. Lipari<br />
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against filling additional motions. Of course, plaintiff may allow Mr. Hawver or other counsel to<br />
represent it. But the court reiterates that it dismissed plaintiff’s case with prejudice and sanctioned<br />
plaintiff for violations of Federal Rule of Civil Procedure 11(b) and 28 U.S.C. § 1927. Plaintiff has a<br />
history of filing frivolous lawsuits and motions, for which the court has sanctioned plaintiff on<br />
several occasions. Future attempts to resurrect this case could result in the court imposing additional<br />
sanctions.<br />
IT IS THEREFORE ORDERED that Ira Dennis Hawver’s Motion to Withdraw (Doc. 81)<br />
is denied.<br />
IT IS FURTHER ORDERED that plaintiff’s Motion for Reconsideration (Doc. 80);<br />
plaintiff’s Motion Under Rule 15 for Leave to Rewrite and Amend Complaint to Cure Any Defects<br />
Requiring Dismissal Remaining After Outcome of Reconsideration Motion (Doc. 92); plaintiff’s<br />
Motion to Strike Documents # 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 93 (Doc. 95); and plaintiff’s<br />
Motion to Rewind Action and Return Proceeding to the Western District of Missouri in the Interest<br />
of Justice Under 28 U.S.C. [§] 1631 (Doc. 102) are hereby stricken from the record.<br />
Dated this 7 th day of August 2006, at Kansas City, Kansas.<br />
s/ Carlos Murguia<br />
CARLOS MURGUIA<br />
United States District Judge<br />
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560. Plaintiff is entitled to recover their actual damages in the amount of in excess of $500,000,000.00<br />
for their actions resulting in the loss of trust accounts, and actual damages in the amount of in excess of<br />
$500,000,000.00 for their actions resulting in the loss of the lease sale together with the costs of suit, and<br />
attorney fees.<br />
561. Defendants’ actions were willful, wanton, malicious and oppressive.<br />
562. Plaintiff is also entitled to recover punitive damages in an amount in excess of $10,000.00.<br />
563. Plaintiff realleges paragraphs 1 through 562.<br />
COUNT XIV<br />
DAMAGES FOR PRIMA FACIE TORT<br />
564. To whatever extent said activities of Defendants may not violate antitrust laws or tortuously<br />
interfere with contract or business expectancy, said acts and activities of Defendants are still unlawful and<br />
fraudulent.<br />
565. Said activities were intended by Defendants and performed by Defendants.<br />
566. Said activities were intended by Defendants to cause injury to Plaintiff.<br />
567. Said activities did directly and proximately cause injury to Plaintiff.<br />
568. Said activities were and are unjustified.<br />
569. Plaintiff is entitled to recover their actual damages in the amount of in excess of $500,000,000.00<br />
for their actions resulting in the loss of trust accounts, and actual damages in the amount of in excess of<br />
$500,000,000.00 for their actions resulting in the loss of the lease sale together with the costs of suit, and<br />
attorney fees.<br />
570. Defendants’ actions were willful, wanton, malicious and oppressive.<br />
571. Plaintiff is also entitled to recover punitive damages in an amount in excess of $10,000.00.<br />
COUNT XV<br />
DAMAGES FOR RACKETEERING<br />
INFLUENCED CORRUPT ORGANIZATION (RICO) CONDUCT<br />
(18 U.S.C. § 1962(c), 18 U.S.C. § 1962(d))<br />
572. Plaintiff realleges paragraph 1 through 571.<br />
573. On January 21, 2005 <strong>Medical</strong> <strong>Supply</strong> discovered the Defendants’ pattern of inflicting injuries on<br />
the plaintiff to obstruct its entry into the market for hospital supplies and hospital supplies in e-commerce.<br />
An important component of the Defendants’ scheme was to interdict capital required by <strong>Medical</strong> <strong>Supply</strong> to<br />
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enter the market. The Defendants targeted <strong>Medical</strong> <strong>Supply</strong>’s founder in 1995 and targeted <strong>Medical</strong> <strong>Supply</strong><br />
upon its incorporation in 2000. From the outset, the Defendants have maintained a continuous pattern of<br />
preventing an independent clearinghouse electronic market place from interfering with their common<br />
enterprise to to artificially inflate prices paid by Medicare, Medicaid and Champus.<br />
574. The Defendants violated 18 U.S.C. § 1962(c) by conducting a RICO enterprise (the hospital group<br />
purchasing enterprise to artificially inflate prices paid by Medicare, Medicaid and Champus) through a<br />
pattern of racketeering activity.<br />
575. The Defendants violated 18 U.S.C. § 1962(d) through participation in a RICO conspiracy.<br />
576. The Defendants engaged in (1) conduct (2) of an enterprise (3) through a pattern (4) of<br />
racketeering activity.<br />
577. The Defendants participated in the operation and management of the hospital group purchasing<br />
enterprise to artificially inflate prices paid by Medicare, Medicaid and Champus itself.<br />
578. When <strong>Medical</strong> <strong>Supply</strong> sought to appeal the outcomes in the Kansas District Court, the Defendants<br />
sought the assistance of Shughart Thomson & Kilroy to intimidate, harass and obstruct <strong>Medical</strong> <strong>Supply</strong> and<br />
prevent <strong>Medical</strong> <strong>Supply</strong> and its agents from testifying and preventing evidence in federal court.<br />
579. To realize that goal the Defendants directly and tacitly caused Shughart Thomson & Kilroy to<br />
create and arrange for <strong>Medical</strong> <strong>Supply</strong>’s counsel to receive repeated ethics complaints and to be prosecuted<br />
by the State of Kansas Disciplinary Administrator based on the false and misleading testimony of Shughart<br />
Thomson & Kilroy’s former managing partner, a federal magistrate judge and a sham complaint made by<br />
the Shughart Thomson & Kilroy counsel defending US Bancorp and Piper Jaffray.<br />
580. Shughart Thomson & Kilroy through its employees and past employees created the plan to<br />
retaliate against and intimidate and harass <strong>Medical</strong> <strong>Supply</strong>’s counsel when they discovered <strong>Medical</strong> <strong>Supply</strong><br />
could not obtain outside counsel due to conflicts of interest in law firms the plaintiff had approached.<br />
581. Shughart Thomson & Kilroy through its employees and past employees implemented the plan and<br />
carried out its operations with the intent and motive of making sure that the Defendants could continue the<br />
enterprise to monopolize the markets in hospital supplies, hospital supplies sold in e-commerce and the<br />
capitalization of healthcare technology and supply chain management companies without challenge by the<br />
US District Court.<br />
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582. The Defendants implicitly ratified Shughart Thomson & Kilroy’s conduct on their behalf and<br />
relied on the conduct to attempt to avoid <strong>Medical</strong> <strong>Supply</strong>’s intention to seek redress. Shughart Thomson &<br />
Kilroy engaged in "racketeering activity" as that term has been defined by Congress, see 18 U.S.C. §<br />
1961(1).<br />
583. The Defendant Shughart Thomson & Kilroy through its officers, employees and agents injured<br />
<strong>Medical</strong> <strong>Supply</strong> in violation of 18 USC § 1503 when it caused false and misleading testimony to be given<br />
against <strong>Medical</strong> <strong>Supply</strong>’s counsel and again when it caused its employee to file a facially void ethics<br />
complaint against <strong>Medical</strong> <strong>Supply</strong>’s counsel. The purpose of the Defendant Shughart Thomson & Kilroy’s<br />
complaint was intimidation and harassment of <strong>Medical</strong> <strong>Supply</strong>’s counsel to interfere with the<br />
administration of justice in the federal antitrust action against the Defendants.<br />
584. 18 USC § 1503 entitled “Influencing or injuring officer or juror generally” provides:<br />
“(a) Whoever corruptly, or by threats or force, or by any threatening letter or communication,<br />
endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of<br />
the United States,… in the discharge of his duty…or injures any such officer,… in his person or<br />
property on account of the performance of his official duties, or corruptly or by threats or force, or<br />
by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to<br />
influence, obstruct, or impede, the due administration of justice, shall be punished as provided in<br />
subsection (b).”<br />
585. The Defendant Shughart Thomson & Kilroy through its officers, employees and agents injured<br />
<strong>Medical</strong> <strong>Supply</strong> in violation of 18 USC § 1513 when it caused false and misleading testimony to be given<br />
against <strong>Medical</strong> <strong>Supply</strong>’s counsel and again when it caused its employee to file a facially void ethics<br />
complaint against <strong>Medical</strong> <strong>Supply</strong>’s counsel to deprive him of property in the form of his license to practice<br />
law. The purpose of the Defendant Shughart Thomson & Kilroy’s retaliation against <strong>Medical</strong> <strong>Supply</strong>’s<br />
counsel was to interfere with the administration of justice in the federal antitrust action against the<br />
Defendants.<br />
586. 18 USC § 1513 entitled “Retaliating against a witness, victim, or an informant” provides:<br />
“(e) [2] Whoever knowingly, with the intent to retaliate, takes any action harmful to any person,<br />
including interference with the lawful employment or livelihood of any person, for providing to a<br />
law enforcement officer any truthful information relating to the commission or possible commission<br />
of any Federal offense, shall be fined under this title or imprisoned not more than 10 years, or both.<br />
(b) Whoever knowingly engages in any conduct and thereby causes bodily injury to another person<br />
or damages the tangible property of another person, or threatens to do so, with intent to retaliate<br />
against any person for—<br />
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(1) the attendance of a witness or party at an official proceeding, or any testimony given or any<br />
record, document, or other object produced by a witness in an official proceeding; or<br />
(2) any information relating to the commission or possible commission of a Federal offense or a<br />
violation of conditions of probation [1] supervised release,,[1] parole, or release pending judicial<br />
proceedings given by a person to a law enforcement officer;”<br />
587. In furtherance of their enterprise to artificially inflate healthcare costs, the Defendants stole<br />
copyrighted works to keep <strong>Medical</strong> <strong>Supply</strong> from realizing its plan to enter the market for hospital supplies.<br />
The Defendants stole copyrighted works that included business plans, algorithms, confidential proprietary<br />
business models, customer and associate lists from <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. in 2002 and from its<br />
predecessor company <strong>Medical</strong> <strong>Supply</strong> Management in 1995 and 1996 in violation of 17 USC § 506 entitled<br />
“Criminal offenses” providing:<br />
“(a) Criminal Infringement.— Any person who infringes a copyright willfully either— for purposes<br />
of commercial advantage or private financial gain, or<br />
by the reproduction or distribution, including by electronic means, during any 180-day period, of 1<br />
or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of<br />
more than $1,000, shall be punished as provided under section 2319 of title 18, United States Code.<br />
For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by<br />
itself, shall not be sufficient to establish willful infringement.”<br />
588. The Defendants violation falls under 18 USC § 2319 entitled “Criminal infringement of a<br />
copyright” which provides:<br />
“(a) Whoever violates section 506 (a) (relating to criminal offenses) of title 17 shall be punished<br />
as provided in subsections (b) and (c) of this section and such penalties shall be in addition to any<br />
other provisions of title 17 or any other law.”<br />
589. Defendants violated The Hobbs Act prohibition against racketeering by preventing <strong>Medical</strong><br />
<strong>Supply</strong>’s entry into commerce under color of official right in violation of 18 U.S.C. 1951, which states:<br />
“Section 1951. Interference with commerce by threats or violence<br />
Whoever in any way or degree obstructs, delays, or affects<br />
commerce or the movement of any article or commodity in commerce,<br />
by robbery or extortion or attempts or conspires so to do, or<br />
commits or threatens physical violence to any person or property in<br />
furtherance of a plan or purpose to do anything in violation of<br />
this section shall be fined under this title or imprisoned not more<br />
than twenty years, or both.<br />
b) As used in this section – The term ''extortion'' means the obtaining of property from another,<br />
with his consent, induced by wrongful use of actual or<br />
threatened force, violence, or fear, or under color of official<br />
right.”<br />
590. Defendants interfered with and obstructed <strong>Medical</strong> <strong>Supply</strong>’s entry into market by threatening the<br />
plaintiff with the filing of a USA PATRIOT Act suspicious activity report which would destroy the<br />
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plaintiff’s ability to make financial wire transactions with corresponding banks required to effectively<br />
compete in the market for hospital supplies.<br />
591. As a direct result Defendants’ unlawful activities, Plaintiff has suffered and will continue to suffer<br />
substantial injuries and damages to their businesses and property.<br />
592. Plaintiff is entitled to recover actual damages in the amount of approximately $500,000,000.00,<br />
multiplied by three for total damages of approximately $1,500,000,000.00, and the cost of suit including a<br />
reasonable attorney’s fee.<br />
COUNT XVI<br />
DAMAGES FOR MALICIOUS FILING OF A SUSPICIOUS ACTIVITY<br />
REPORT (SAR) UNDER THE USA PATRIOT ACT<br />
(Pub. L. No. 107-56 (2001),18 U.S.C.§1030 (e), 31 U.S.C. § 5318 (g)(3))<br />
593. Plaintiff realleges paragraphs 1 through 592.<br />
594. On information and belief the Defendants through US Bank and US Bancorp NA and maliciously<br />
filed a suspicious activity report (“SAR”) concerning <strong>Medical</strong> <strong>Supply</strong> and its founder Samuel Lipari with<br />
federal authorities for the purpose of securing a financial benefit for the Defendants including US Bank and<br />
US Bancorp NA and were not protected by the safe harbor provisions of 31 U.S.C. § 5318 (g)(3).<br />
595. The USA PATRIOT Act § 310. Financial Crimes Enforcement Network requires the maintenance<br />
of a government wide data access service and data banks for financial crime reporting including suspicious<br />
activity reports. In threatening to cause a malicious suspicious activity report or in causing a malicious<br />
suspicious activity report t be filed against <strong>Medical</strong> <strong>Supply</strong>, the defendants have violated 18 U.S.C.§1030.<br />
596. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept<br />
and Obstruct Terrorism Act of 2001 (The USA PATRIOT Act) Pub. L. No. 107-56 (2001), 115 Stat. 272.<br />
at § 814 of the USA PATRIOT Act entitled DETERRENCE AND PREVENTION OF<br />
CYBERTERRORISM created a private right of action for <strong>Medical</strong> <strong>Supply</strong> to address the conduct of the<br />
Defendants in gaining access to the FINCEN network for the purpose of filing a suspicious activity report<br />
to prevent <strong>Medical</strong> <strong>Supply</strong> from providing hospital supplies and reducing healthcare costs.<br />
597. The USA PATRIOT Act amended 18 U.S.C.§1030 to include a cause of action for impairment, or<br />
potential impairment of medical diagnosis, treatment or care, physical injury, a threat to public health or<br />
safety.<br />
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598. The USA PATRIOT Act reaffirmed the civil liability and private rights of action provisions of 18<br />
U.S.C.§1030 (e) DAMAGES IN CIVIL ACTIONS- to include civil liability for any person may maintain<br />
a civil action for damages and injunctive relief.<br />
599. 18 U.S.C.§1030 provides:<br />
18 U.S.C.§1030. Fraud and related activity in connection with computers<br />
Whoever - knowingly and with intent to defraud, accesses a protected<br />
computer without authorization, or exceeds authorized access, and<br />
by means of such conduct furthers the intended fraud and obtains<br />
anything of value,<br />
(5)<br />
(iii) intentionally accesses a protected computer without<br />
authorization, and as a result of such conduct, causes damage;<br />
and<br />
(B) by conduct described in clause (i), (ii), or (iii) of<br />
subparagraph (A), caused (or, in the case of an attempted<br />
offense, would, if completed, have caused) -<br />
(ii) the modification or impairment, or potential<br />
modification or impairment, of the medical examination,<br />
diagnosis, treatment, or care of 1 or more individuals;<br />
(iii) physical injury to any person;<br />
(iv) a threat to public health or safety;<br />
(g) Any person who suffers damage or loss by reason of a<br />
violation of this section may maintain a civil action against the<br />
violator to obtain compensatory damages and injunctive relief or<br />
other equitable relief. A civil action for a violation of this<br />
section may be brought only if the conduct involves 1 of the<br />
factors set forth in clause (i), (ii), (iii), (iv), or (v) of<br />
subsection (a)(5)(B). Damages for a violation involving only<br />
conduct described in subsection (a)(5)(B)(i) are limited to<br />
economic damages. No action may be brought under this subsection<br />
unless such action is begun within 2 years of the date of the act<br />
complained of or the date of the discovery of the damage.”<br />
600. The USA PATRIOT Act) Pub. L. No. 107-56 (2001), 115 Stat. 272. at § 351 modified 31 U.S.C. §<br />
5318 (g)(3) to eliminate immunity from civil liability for malicious suspicious activity reporting:<br />
“(g) Reporting of suspicious transactions.--<br />
In General.-The Secretary may require any financial institution, and any director, officer, employee,<br />
or agent of any financial institution, to report any suspicious transaction relevant to a possible<br />
violation of law or regulation.<br />
* *<br />
Liability for disclosures.--<br />
In general.-Any financial institution that makes a voluntary disclosure of any possible violation of<br />
law or regulation to a government agency or makes a disclosure pursuant to this subsection or any<br />
other authority, and any director, officer, employee, or agent of such institution who makes, or<br />
requires another to make any such disclosure, shall not be liable under law or regulation of the<br />
United States, any constitution, law, or regulation of any State or political subdivision of any State,<br />
or under any contract or other legally enforceable agreement (including any arbitration agreement),<br />
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for such disclosure or for any failure to provide notice of such disclosure to the person who is<br />
subject of such disclosure or any other person identified in the disclosure.”<br />
601. The Act specifies that financial institutions are to report" any possible violation of law or<br />
regulation." Congress did not intend the Act's safe harbor to give banks blanket immunity for malicious,<br />
willful criminal and civil violations of law.<br />
602. Importantly, the Act requires there to be a "possible" violation of law-"possible" being the<br />
operative word-before a financial institution can claim protection of the statute.<br />
603. The Defendants knew there was no possible violation and that the USA PATRIOT Act know your<br />
customer provision did not apply to the subject escrow accounts.<br />
604. US Bank and US Bancorp did not file a report of a "possible violation" of the law but rather acted<br />
maliciously and willfully in an attempt to have <strong>Medical</strong> <strong>Supply</strong> deprived of high level banking services<br />
including international wire fund transactions on information the defendants knew to be false.<br />
605. Said activities aforementioned by Defendants were done in concert and in secret with the intention<br />
to injure Plaintiff all the while knowing that the lack of candor and disclosure of the true acts and activities<br />
by Defendants would give Defendants an economic advantage over Plaintiff. Defendants were engaged in<br />
concealed fraudulent conduct.<br />
606. Said malicious suspicious activity reporting against <strong>Medical</strong> <strong>Supply</strong> and its founder Samuel Lipari<br />
was done with the purpose of restricting the availability of and access to hospital supplies and resulted in<br />
impairment and potential impairment of medical diagnosis, treatment and care, along with physical injury,<br />
and constituted a threat to public health and safety<br />
607. Said activities were intended by Defendants to cause injury to Plaintiff by and through intentional<br />
misrepresentations to third parties concerning Plaintiff.<br />
6<strong>08</strong>. Said activities did directly and proximately cause injury to Plaintiff.<br />
609. Said activities were and are unjustified.<br />
610. Plaintiff is entitled to recover their actual damages in the amount of in excess of $500,000,000.00<br />
for their actions resulting in the loss of trust accounts, and actual damages in the amount of in excess of<br />
$500,000,000.00 for their actions resulting in the loss of the lease sale together with the costs of suit, and<br />
attorney fees.<br />
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611. Defendants’ actions were willful, wanton, malicious and oppressive.<br />
612. Plaintiff is also entitled to recover punitive damages in an amount in excess of $10,000.00.<br />
TOLLING OF APPLICABLE STATUTES OF LIMITATIONS<br />
613. Plaintiff could not have reasonably discovered its injuries, or that its injuries were wrongfully<br />
caused, until January 21st, 2005, when Shughart Thomson & Kilroy’s former managing partner testified<br />
under oath in the Kansas Attorney Disciplinary Prosecution of the plaintiff’s counsel.<br />
PRAYER FOR RELIEF<br />
WHEREFORE Plaintiff demands:<br />
(1) That Defendants, their agents and servants, be enjoined during the pungency of this action and<br />
permanently from their activities in unreasonable restraint of trade or commerce and in monopolizing,<br />
attempting to monopolize, or combining or conspiring to monopolize.<br />
(2) That Defendants be required to pay to Plaintiff such damages as Plaintiff has sustained in<br />
consequence of Defendants’ activities in unreasonable restraint of trade or commerce and in<br />
monopolizing, attempting to monopolize, or combing or conspiring to monopolize, in the amount of<br />
approximately $500,000,000.00, multiplied by three for total damages of approximately<br />
$1,500,000,000.00 for the conduct related to the refusal to provide trust accounts and approximately<br />
$500,000,000.00, multiplied by three for total damages of approximately $1,500,000,000.00 for the<br />
conduct related to preventing <strong>Medical</strong> <strong>Supply</strong> from selling the office building lease to General Electric<br />
Transportation Co. for a total of approximately $3,000,000,000.00.<br />
(3) That Defendants be required to pay to Plaintiff such damages as Plaintiff has sustained in<br />
consequence of Defendants’ activities in tortuous interference with contract or business expectancy and/or<br />
in prima facie tort, in the amount of approximately $1,000,000.00, together with punitive or exemplary<br />
damages for the same, in an amount in excess of $10,000.00.<br />
(4) <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. seeks damages for the injury of its business associates and<br />
stakeholders, including Blue Springs, Missouri, loss of good will and the injury of the 2000 hospitals<br />
loosing money due to high supply costs under Mid Atl. Telecom, Inc. v. Long Distance Servs., Inc., 18<br />
F.3d 260, 263 (4th Cir.1994)’s interpretation of standing on a RICO statutes having a common antitrust<br />
basis.<br />
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(5) That Defendants be required to pay to Plaintiff such damages as Plaintiff has sustained in<br />
consequence of Defendants’ activities in violation of civil racketeering laws, in the amount of<br />
approximately $500,000.00, multiplied by three for total damages of approximately $1,500,000.00.<br />
(6) That Defendants be required to pay to Plaintiff such damages as Plaintiff has sustained in<br />
consequence of Defendants’ activities in violation of the USA PATRIOT Act, in the amount of<br />
approximately $500,000.00.<br />
(7) That Defendants pay to Plaintiff the costs of this action and reasonable attorney’s fees to be<br />
allowed to the Plaintiff by the Court.<br />
(8) That Plaintiffs have such other and further relief as is just.<br />
CONCLUSION<br />
Whereas for the above reasons, the plaintiff respectfully request that the court award damages and<br />
provide other relief, attorneys fees and costs.<br />
Respectfully Submitted<br />
S/Bret D. Landrith<br />
Bret D. Landrith<br />
Kansas Supreme Court ID # 20380<br />
2961 SW Central Park, # G33,<br />
Topeka, KS 66611<br />
1-785-876-2233<br />
1-785-267-4<strong>08</strong>4<br />
landrithlaw@cox.net<br />
DEMAND FOR TRIAL BY JURY<br />
Comes now plaintiff and makes demand for a trial before 8 jurors.<br />
S/Bret D. Landrith<br />
Bret D. Landrith<br />
Kansas Supreme Court Number 20380<br />
DESIGNATION OF PLACE OF TRIAL<br />
Comes now plaintiff and designates Kansas City, Missouri as the place of trial.<br />
S/Bret D. Landrith<br />
Bret D. Landrith<br />
Kansas Supreme Court Number 20380<br />
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UNITED STATES DISTRICT COURT<br />
FOR THE DISTRICT OF KANSAS<br />
KANSAS CITY, KANSAS<br />
MEDICAL SUPPLY CHAIN, INC., )<br />
Plaintiff, )<br />
v. ) Case No. 05-2299-KHV<br />
NOVATION, LLC ) Formerly W.D. MO. Case No. 05-0210<br />
NEOFORMA, INC.<br />
) Attorney Lien<br />
ROBERT J. ZOLLARS )<br />
VOLUNTEER HOSPITAL ASSOCIATION )<br />
CURT NONOMAQUE )<br />
UNIVERSITY HEALTHSYSTEM CONSORTIUM )<br />
ROBERT J. BAKER )<br />
US BANCORP, NA )<br />
US BANK )<br />
JERRY A. GRUNDHOFFER )<br />
ANDREW CESERE )<br />
THE PIPER JAFFRAY COMPANIES )<br />
ANDREW S. DUFF )<br />
SHUGHART THOMSON & KILROY )<br />
WATKINS BOULWARE, P.C. )<br />
Defendants. )<br />
MEMORANDUM IN SUPPORT OF FIRST PLAINTIFF’S MOTION FOR PARTIAL SUMMARY<br />
JUDGMENT UNDER F. R. CIV. P. LOCAL RULE 56.1<br />
Comes now the plaintiff <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc., through its counsel Bret D. Landrith and<br />
makes the above captioned memorandum in support of plaintiff’s first motion for partial summary<br />
judgment. <strong>Medical</strong> <strong>Supply</strong> respectfully requests rulings that each defendant is distinct from the RICO<br />
enterprise, that a defendant's liability for RICO conspiracy does not require that defendant to participate in<br />
the operation or management of the enterprise, that RICO liability extends to aiders and abettors and that<br />
the law firm Shughart, Thomson & Kilroy, Watkins, Boulware, P.C. (Shughart, Thomson & Kilroy) is<br />
properly a RICO Defendant. The plaintiff’s suggestion that summary judgment motions be bifurcated was<br />
not controverted and the plaintiff expects to file fact based summary judgment motions based on the<br />
defendants’ per se antitrust violations. <strong>Medical</strong> <strong>Supply</strong> respects the court grant this pure legal question<br />
summary judgment for the following reasons:<br />
STATEMENT OF FACTS FOR PARTIAL SUMMARY JUDGMENT ON LEGAL ISSUES<br />
1. On September 2, 2005, The Kansas City Business Journal published an article about the racketeering<br />
conduct of Shughart Thomson & Kilroy’s nearest Kansas City competitor Shook, Hardy and Bacon<br />
LLP. See Exb. 1<br />
1<br />
Exb 1<br />
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2. The Notre Dame law School Professor G. Robert Blakey was interviewed and stated it was wrong for<br />
the law firm not to be made a defendant in the civil RICO action against the tobacco companies. See<br />
Exb. 1, pg. 1<br />
3. On August 15, 2005, the US Justice Department filed a post trial proposed finding of fact in the civil<br />
racketeering case against tobacco companies mentioning at least 15 Shook Hardy lawyers by name and<br />
referring to the firm more than 250 times. See Exb. 1, pg. 1, Exb 2 generally.<br />
4. On August 24, 2005, the US Justice Department filed a post trial brief arguing with controlling legal<br />
authority that the law firm Shook, Hardy and Bacon LLP had the requisite intent to be liable as a RICO<br />
person. See Exb 3 generally.<br />
5. <strong>Medical</strong> <strong>Supply</strong> filed an amended complaint against Unknown Healthcare, for Brian Kabbes, for Lars<br />
Anderson, for Susan Paine, for Andrew Cesere, for Piper Jaffray, for Mutual Fund Services, for<br />
Institutional Trust, for Corporate Trust, for US Bank Private and for US Bancorp, NA some of whom<br />
are the current defendants on See Exb 4 generally.<br />
6. The complaint described the defendants’ conduct violating the Hobbs Act against racketeering in<br />
keeping <strong>Medical</strong> <strong>Supply</strong> out of the market to further the defendants’ monopolization of the hospital<br />
supplies by falsely using the USA Patriot Act “know your customer” provision and the US Bank’s<br />
official role enforcing the USA Patriot Act. See Exb 4 pg. s 44-47<br />
7. The witnessed conduct was attested to by Sam Lipari in an affidavit at the end of the complaint. See<br />
Exb 4 pg.68<br />
8. The plaintiff was unsuccessful in obtaining injunctive relief to prevent the defendants’ monopolization.<br />
9. <strong>Medical</strong> <strong>Supply</strong> notified the non defendant hospital supply cartel members participating in the<br />
agreement to boycott <strong>Medical</strong> <strong>Supply</strong> in December 2004. See Novation Complaint Exb 5 pg.s 85-86.<br />
10. Shughart Thomson & Kilroy a law firm stepped up their efforts to obstruct justice and prevent medical<br />
<strong>Supply</strong> from having representation and legal resources to expose the cartel’s monopolization of<br />
hospital supplies. See Novation Complaint Exb 5 pg. 1<strong>08</strong>-111<br />
11. The Shughart Thomson & Kilroy lawyer Andrew DeMarea filed a fraudulent Kansas Disciplinary<br />
complaint against <strong>Medical</strong> <strong>Supply</strong>’s counsel for appealing a trial court ruling the Tenth Circuit panel<br />
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admitted was incorrect about the USA Patriot Act statute. See De Marea Complaint Exb 6 pg.1, See<br />
also Tenth Circuit Sanction order, Exb 7.<br />
12. Andrew DeMarea’s former boss, Kansas US District Court Magistrate James P. O’Hara altered his<br />
testimony on the stand on January 21, 2005 revealing for the first time the defendants’ continuing<br />
pattern and practice of racketeering to <strong>Medical</strong> <strong>Supply</strong>’s President and counsel. See Novation<br />
Complaint Exb 5 pg., See also Magistrate O’Hara Testimony Sup 1 Atch 9 pg.s 609-669<br />
13. <strong>Medical</strong> <strong>Supply</strong> then documented the newly discovered pattern events and incorporated the into the<br />
complaint filed against the defendants for damages resulting from the earlier injury <strong>Medical</strong> <strong>Supply</strong><br />
had tried to enjoin. See Supplement 1, Federal Bureau of Investigation Complaint and Sup.1 Atch 1<br />
thru 13.<br />
14. The extra legal or outside of court racketeering to obstruct justice, intimidate and retaliate against<br />
witnesses and victims is still continuing and has led to injury of <strong>Medical</strong> <strong>Supply</strong> principals. See<br />
affidavit of Sam Lipari Exb. 8 generally.<br />
ARGUMENTS AND AUTHORITIES<br />
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate if the<br />
pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if<br />
any, show that there is no genuine issue as to any material fact and that the moving party is entitled to<br />
judgment as a matter of law. Fed. R. Civ. P. 56(c). Material facts are those that “might affect the outcome<br />
of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).<br />
In considering a summary judgment motion, “the evidence of the non-movant is to be believed, and all<br />
justifiable inferences are to be drawn in his favor.” Id. at 255; see also Washington Post Co. v.United<br />
States Dep’t of Health and Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989).<br />
Additionally, summary judgment is appropriate for purely legal questions. See generally Moore's<br />
Federal Practice, P56.20(3.-2)(2ded. 1976). A determination on a strict legal issue can "narrow the issues<br />
in [a] case, advance the progress of the litigation, and provide the parties with some guidance as to how<br />
they proceed with the case." Warner v. United States, 698 F. Supp. 877, 879 (S.D. Fla. 1988). "Summary<br />
judgment can thus serve to set the issues for trial .... The outcome of [the] dispute will have an immediate<br />
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<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5770
impact on the proofs to be offered at trial in support of the elements of the statutory causes of action."<br />
Disandro v. Makahuena Corp., 588 F. Supp. 889, 892 (D. Haw. 1984); see also Lies v.<br />
Farrell Lines, Inc., 641 F.2d 765, 768-69 (9th Cir. 1981).<br />
The party opposing the motion "'may not rest upon the mere allegations or denials of his pleadings'<br />
to avoid summary judgment. Bacchus, 939 F.2d at 891 (quoting Anderson, 477 U.S. at 248, 106 S. Ct. at<br />
2510).” Bancoklahoma Mortgage Corp. v. Capital Title Co., 194 F.3d 1<strong>08</strong>9 at 1097-1098 (10th Cir., 1999).<br />
Plaintiff, <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. (<strong>Medical</strong> <strong>Supply</strong>),has brought this suit against the<br />
Defendants1 pursuant to Sections 1962(c) and (d) of the Racketeer Influenced and Corrupt Organizations<br />
Act ("RICO"), 18 U.S.C. § 1961, et seq.. <strong>Medical</strong> <strong>Supply</strong> alleges violations of both Sections 1962(c)<br />
and (d). 1<br />
To prove the alleged violations of Section 1962(c), <strong>Medical</strong> <strong>Supply</strong> must show: (1) the conduct<br />
(2) of an enterprise (3) through a pattern of racketeering activity." Salinas v. United States, 522 U.S. 52,<br />
62 (1997). S. P. R.L. v. Imrex Co., Inc., 473 U. S. 479, 496 (1985); BancOklahoma Mortgage Corp. v.<br />
Capital Title Co. Inc., 194 F.3d 1<strong>08</strong>9, 1100 (10th Cir. 1999). Robbins v. Wilkie, 2002 C10 944 20<br />
(USCA10, 2002).<br />
Whether § 1962(c) should be interpreted to require a substantial effect on interstate commerce is<br />
an open question in Tenth circuit. However, neither the Supreme Court nor any courts of appeals have held<br />
that the effect must be substantial, and a number of our sister circuits have held that a de minimis effect on<br />
interstate commerce is sufficient to satisfy this statutory requirement. See United States v. Shyrock, 342<br />
F.3d 948, 984 (9th Cir. 2003) (holding that the district court properly instructed the jury that § 1962(c)'s<br />
jurisdictional element was satisfied if the jury found "a de minimis affect [sic] on interstate commerce");<br />
United States v. Marino, 277 F.3d 11, 35 (1st Cir. 2002) (holding that "the government does not need to<br />
show that the RICO enterprise's effect on interstate commerce is substantial"); United States v. Riddle, 249<br />
F.3d 529, 537 (6th Cir. 2001) (holding that a "RICO enterprise's necessary relationship to interstate<br />
commerce" is "de minimis"); United States v. Miller, 116 F.3d 641, 674 (2d Cir. 1997) (holding that "the<br />
1 Sections 1962(c) and (d) provide:<br />
(c) It shall be unlawful for any person employed by or<br />
associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce,<br />
to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern<br />
of racketeering activity or collection of unlawful debts.<br />
(d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or<br />
(c) of this section. 18 U.S.C. §§ 1962(c)-(d).<br />
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<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5771
government need only prove that the individual subject transaction has a de minimis effect on interstate<br />
commerce" in order to satisfy § 1962(c)).<br />
An enterprise "includes any individual, partnership, corporation, association, or other legal<br />
entity, and any union or group of individuals associated in fact though not a legal entity." 18 U.S.C. §<br />
1961(4). Racketeering activity includes, among other things, acts prohibited by any one of a number of<br />
criminal statutes. 18 U.S.C. § 1961(1). A "pattern" is demonstrated by two or more instances of<br />
"racketeering activity" that occur within 10 years of one another. 18 U.S.C. § 1961(5). In this case, the<br />
alleged racketeering acts are violations of 18 U.S.C. §§ 1341 (mail fraud) and 1343 (wire fraud).<br />
To demonstrate violations of Section 1962(d), <strong>Medical</strong> <strong>Supply</strong> must prove: (1) that two more<br />
people agreed to violate Section 1962(c), and (2) that the defendant knew of and agreed to the overall goal<br />
of the violation. United States v. Philip Morris Inc., 130 F.Supp.2d 96 (D.D.C. 2001).<br />
In the present Motion, <strong>Medical</strong> <strong>Supply</strong> seeks partial summary judgment striking certain<br />
affirmative defenses of Defendants and on particular issues of law relating to proof of liability. <strong>Medical</strong><br />
<strong>Supply</strong> argues first that, as a matter of law, each Defendant is distinct from the alleged RICO enterprise.<br />
Second, <strong>Medical</strong> <strong>Supply</strong> argues that, as a matter of law, aDefendant's liability for RICO conspiracy under<br />
Section 1962(d) does not require proof that such Defendant participated in the operation or management of<br />
the alleged enterprise. Finally, <strong>Medical</strong> <strong>Supply</strong> argues that, as a matter of law, liability for committing a<br />
racketeering act under Section 1962(c) extends to those Defendants who aided and abetted the commission<br />
of that act.<br />
A. EACH DEFENDANT IS DISTINCT FROM THE ALLEGED RICO ENTERPRISE<br />
<strong>Medical</strong> <strong>Supply</strong> seeks partial summary judgment that each Defendant is distinct from the RICO<br />
enterprise. 2 To establish an enterprise under Section 1962(c), a plaintiff must allege and prove the existence<br />
of two distinct entities: (1) a 'person' and (2) an 'enterprise' that is not simply the same 'person' referred to<br />
by a different name. Cedric Kushner Promotions, Ltd. v. King, 533 U.S.158, 161 (2001). In King, the<br />
Court concluded that a RICO defendant, or 'person', must be distinct from the RICO 'enterprise' that the<br />
defendant is associated with or employed by. Id. at 161-62.<br />
2 <strong>Medical</strong> <strong>Supply</strong> seeks summary judgment not on some abstract issue, as Defendants argue, but rather on<br />
its request to strike the affirmative defenses denying distinctness. Thus, the Court's conclusion on the<br />
distinctness element and is proper under Fed.R.Civ.P. 56.<br />
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<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5772
Regardless of how the enterprise is defined (if at all), <strong>Medical</strong> <strong>Supply</strong> has proven the distinctness<br />
element in this case. Courts have already held that an "association-in-fact" enterprise can be a group of<br />
corporations. See Philip Morris, 116 F.Supp.2d at 152-53. Moreover, there is no dispute that each<br />
individual Defendant is a separate legal entity or an individual with the capacity of being a RICO person.<br />
Thus, if this Court should find an enterprise comprised of at least two of the Defendants, the Defendants<br />
will be distinct from the enterprise itself. Of course, <strong>Medical</strong> <strong>Supply</strong> must also prove, as it acknowledges,<br />
the requirements of the alleged enterprise –- common purpose, organization, and continuity –- in order to<br />
prevail on its RICO claims. United States v. Perholtz, 842 F.2d 343, 362 (D.C. Cir. 1988)). However, there<br />
is no reason to postpone a definitive determination on distinctness.<br />
Accordingly, <strong>Medical</strong> <strong>Supply</strong>'s Motion for partial summary judgment removing potential<br />
affirmative defenses of failure to identify a RICO enterprise separate and distinct from the Defendants<br />
themselves should be granted.<br />
B. A DEFENDANT'S LIABILITY FOR CONSPIRACY UNDER 18 U.S.C. § 1962(d) DOES<br />
NOT REQUIRE THAT DEFENDANT TO PARTICIPATION THE OPERATION OR<br />
MANAGEMENT OF THE ENTERPRISE<br />
In Salinas, the Supreme Court held that liability under Section 1962(c) is not a prerequisite to<br />
finding liability under Section 1962(d). See Salinas, 522 U.S. at 66. In that case, the defendant was<br />
charged with criminal violations of Sections 1962(c) and (d) but was convicted on the conspiracy charge<br />
alone. In concluding that a RICO conspiracy defendant need not commit a substantive RICO offense under<br />
Section 1962(c), the Court explained that "it is sufficient that the [defendant] adopt the goal of furthering or<br />
facilitating the criminal endeavor." Id. at 65. The Court noted that RICO's conspiracy section is to be<br />
interpreted in light of the common law of criminal conspiracy. See id. 3 The tenth Circuit stated:<br />
“Because this conspiracy provision lacks an overt act requirement, a defendant can be convicted<br />
under § 1962(d) upon proof that the defendant knew about or agreed to facilitate the commission of<br />
acts sufficient to establish a § 1962(c) violation. See Salinas v. United States, 522 U.S. 52, 63-66<br />
(1997).”<br />
United States v. Smith, No. 03-4240 at pg.1 (Fed. 10th Cir. 7/6/2005) (Fed. 10th Cir., 2005).<br />
3 "If conspirators have a plan which calls for some conspirators to perpetrate a crime and others to provide<br />
support, the supporters are as guilty as the perpetrators ... so long as they share a common purpose,<br />
conspirators are liable for the acts of their co-conspirators." Salinas, 522 U.S. at 64.<br />
6<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5773
Accordingly, one who opts into or participates in a Section 1962(d) conspiracy to violate Section<br />
1962(c) is liable for the acts of his co-conspirators even if that defendant did not personally agree to<br />
commit, or to conspire with respect to, any particular one of those acts. Id.<br />
This liability for the “passive conspirator” exists notwithstanding Reves v. Ernst & Young, 507<br />
U.S. 170, 185 (1993). Some defendants claim that the law requires a showing of "operation or management<br />
of the enterprise" to demonstrate a RICO conspiracy under Section 1962(d).Even though the Supreme<br />
Court did hold in Reves that, to "conduct or participate, directly or indirectly, in the conduct of such<br />
enterprise's affairs, one must participate in the operation or management of the enterprise itself," the<br />
passive conspirator immunity argument fails for the following reasons.<br />
First, Reves involved a Section 1962(c) substantive RICO offense not a Section 1962(d) RICO<br />
conspiracy offense. In Reves, the Supreme Court held that an accounting firm could not be liable<br />
under Section 1962(c) for incorrectly valuing a farm cooperative's assets listed on its financial statements.<br />
Reves, 507 U.S. at 179. The Court reasoned that the firm had not "conduct[ed] or participated ... in the<br />
conduct" of the enterprise's affairs because it did not participate in the "operation or management of the<br />
enterprise itself." Id.<br />
All circuits but the Ninth have concluded that Reves addressed only the extent of conduct or<br />
participation necessary to violate Section 1962(c), and did not address the principles of conspiracy law<br />
under Section 1962(d). 4 See Smith v. Berg, 247 F.3d 532 (3d Cir. 2001); United States v. Posada-Rios, 158<br />
F.3d 832, 857 (5 th Cir. 1998); Napoli v. United States, 45 F.3d 680, 683-84 (2d Cir. 1995); MCM Partners,<br />
Inc. v. Andrews-Bartlett & Assoc., 62 F.3d 967, 979 (7th Cir. 1995); United States v. Starrett, 55 F.3d 1525,<br />
1547 (11th Cir. 1995); United States v. Quintanilla, 2 F.3d 1469, 1485 (7th Cir. 1993) ("to hold that under<br />
section 1962(d) the government must show that an alleged coconspirator ... participated to the extent<br />
required in Reves would add an element to RICO conspiracy that Congress did not direct"). The tenth<br />
Circuit stated:<br />
4 As noted, only the Ninth Circuit has ruled that Reves' on or management" test applies to RICO<br />
conspiracy charges. See Neibel v. Trans World Assurance Co., 1<strong>08</strong> F.3d 1123, 1128-29 (9th Cir. 1997).<br />
However, Neibel was decided before Salinas, and the Ninth Circuit has not yet revisited its ruling.<br />
Moreover, Neibel relied upon United States v. Antar, 53 F.3d 568, 581 (3d Cir. 1995), another pre-Salinas<br />
decision, which the Third Circuit subsequently ruled was no longer good Smith v. Berg, 247 F.3d at 534.<br />
7<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5774
"[T]he word 'participate' makes clear that RICO liability is not limited to those with primary<br />
responsibility for the enterprise's affairs, just as the phrase 'directly or indirectly' makes clear that<br />
RICO liability is not limited to those with a formal position in the enterprise, but some part in<br />
directing the enterprise's affairs is required." Reves II, 507 U.S. at 179, 113 S.Ct. at 1170 (footnote<br />
omitted). Id. (footnote omitted). Outsiders, such as the Title Companies, who are associated with a<br />
RICO enterprise and participate in the operation or management of the enterprise may also be liable<br />
under 1962(c). Reves II, 507 U.S. at 185, 113 S. Ct. at 1173.”<br />
BancOklahoma Mortgage Corp. v. Capital Title Co. Inc., 194 F.3d 1<strong>08</strong>9, 1100 (10th Cir. 1999).<br />
Thus, Reves' "operation or management" standard applies only to substantive RICO offenses under Section<br />
1962(c) and not to a conspiracy to violate RICO under Section 1962(d).<br />
Second, after Reves, the Supreme Court specifically set forth in Salinas the standard for liability<br />
under Section 1962(d). See Salinas, 522 U.S. at 65. Such conspiracy liability requires a showing that: (1)<br />
two or more people agreed to commit a substantive RICO offense, and (2) the defendant knew of and<br />
agreed to the overall objective of the violation. Id.; See Posada-Rios, 158 F.3d at 857 (citing Salinas);<br />
Brouwer v. Raffensperger, Hughes & Co., 199 F.3d 961, 967 (7th Cir. 2000) (same). There can be no<br />
question that the Supreme Court was aware of its decision in Reves when it decided Salinas, and there is<br />
nothing inconsistent between the two decisions.<br />
Thus, reading Reves and Salinas together, it is clear that a defendant may be held liable for<br />
conspiracy to violate Section1962(c) if it knowingly agrees to violate the elements of Section<br />
1962(c), one of which is the "operation or management" of a RICO enterprise. 5<br />
However, liability for a<br />
RICO conspiracy under Section 1962(d) does not require the same proof of participation in the "operation<br />
or management" of the alleged RICO enterprise, just as it does not require proof of commission of all the<br />
5 Relying upon Beck v. Prupis, 529 U.S. 494 (2000), Defendants could assert that Salinas is irrelevant for<br />
the purpose of civil RICO claims. Beck involved a chief executive officer whose employment was<br />
terminated when he discovered that certain of his company's officers were engaged in racketeering. The<br />
Court ruled that the termination, allegedly in furtherance of a RICO conspiracy, was not independently<br />
wrongful under any substantive RICO provision and did not give rise to a cause of action under Section<br />
1962(c). In Beck, the only mention of Salinas appears in a footnote:<br />
"[w]e have turned to the common law of criminal conspiracy to define what constitutes a violation of §<br />
1962(d), .... This case,however, does not present simply the question of what constitutes a violation of §<br />
1962(d), but rather the meaning of a civil cause of action for private injury by reason of such a violation."<br />
Beck, 529 U.S. at 501 n.6. However, this sentence does not in any way repudiate or undercut the Salinas<br />
holding. The Beck decision turns rather on the injury requirement of Section 1964(c). Id. Thus, violations<br />
of Section 1962(d) continue to be defined under and governed by Salinas.<br />
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other elements of the Section 1962(c) substantive offense. Salinas, 522 U.S. at 65; see also Smith, 247 F.3d<br />
at 537.<br />
Accordingly, <strong>Medical</strong> <strong>Supply</strong>'s Motion for partial summary judgment that a Defendant's liability<br />
for RICO conspiracy does not require that Defendant to participate in the operation or management of the<br />
enterprise should be granted.<br />
C. WHETHER LIABILITY FOR A PARTICULAR RACKETEERING ACT EXTENDS TO<br />
AIDERS AND ABETTORS MUST BE DETERMINED AT TRIAL<br />
To establish a "pattern of racketeering activity" for purposes of Section 1962(c), <strong>Medical</strong> <strong>Supply</strong><br />
must show that each Defendant committed at lease two acts of racketeering, "the last of which occurred<br />
within ten years ... after the commission of a prior racketeering act." 18 U.S.C. § 1961(5). <strong>Medical</strong> <strong>Supply</strong><br />
argues that a defendant's liability for a particular racketeering act may be established by proof that the<br />
Defendant aided and abetted the commission of that racketeering act. Pereira v. United States, 347 U.S. 1,<br />
9 (1954) (a person who aids and abets another in the commission of mail fraud, a violation of § 1341, also<br />
violates §1341); United States v. Shifman, 124 F.3d 31, 36 (1st Cir. 1997).<br />
Aiding and abetting is no longer applicable to securities fraud under RICO after Central Bank of<br />
Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994). In Central Bank, the Supreme<br />
Court held that there can be no private civil liability for aiding and abetting securities fraud under Section<br />
10(b) of the 1934 Securities Exchange Act and Rule 10b-5. Central Bank, 511 U.S. at 185.<br />
After<br />
examining the language and structure of the Act, the Court concluded that "the text of the 1934 Act does<br />
not itself reach those who aid and abet a Section 10(b) violation." Id. At 183.<br />
However, the plaintiff does not raise securities law based claims. It is clear from the averments in<br />
the complaint that Neoforma, Inc. (NEOF) and Robert Zollars are subject to civil liability under the<br />
securities laws to shareholders. Neoforma, Inc. (NEOF) and Robert Zollars have previously defended<br />
against shareholder liability lawsuits without disclosing that Neoforma, Inc.’s technology and market<br />
potential described in its prospectuses and quarterly reports was compromised against the interests of the<br />
company’s shareholders in agreements to enforce the artificially inflated prices of the established “bricks<br />
and mortar” distributors UHC, VHA and Novation, LLC.<br />
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An argument can be made that Central Bank eliminates aiding and abetting in non securities fraud<br />
based RICO claims. See the discussion of American Honda Motor Co., Inc., Dealerships Relations<br />
Litigation. 958 F.Supp. 1045 (D. Md. 1997) under Law firm RICO liability infra. However in the Tenth<br />
Circuit this issue does not yet appear to be resolved against civil aiding and abetting liability and RICO<br />
aiding and abetting is still liberally applied in criminal cases.<br />
The Tenth Circuit has clearly set out the elements of aiding and abetting:<br />
“The elements of aiding and abetting are also well-settled. Jones, 44 F.3d at 869.[ United States v.<br />
Jones, 44 F.3d 860, 869 (10th Cir. 1995).] Under 18 U.S.C. § 2, the Government must prove beyond<br />
a reasonable doubt the defendant: (1) "willfully associate[d] with the criminal venture," and (2)<br />
"aid[ed] such venture through affirmative action." Jones, 44 F.3d at 869. Mere presence at a crime<br />
scene is insufficient to prove aiding and abetting. See id. Although knowledge a crime is being<br />
committed is relevant, some showing of intent to further the criminal venture must be introduced at<br />
trial. See id.”<br />
United States v. Delgado-Uribe, No. 03-8003 (10th Cir. 4/13/2004) (10th Cir., 2004). The Tenth<br />
Circuit still applies the shared intent standard for aiding and abetting in criminal acts:<br />
“This Court has held that, in order to be convicted of aiding and abetting, a defendant must "share[]<br />
in the intent to commit the [underlying] offense." U.S. v. Thurmond, 7 F.3d 947, 950 (10th Cir.<br />
1993)...We agree with the First Circuit and therefore conclude that Mr. Vallejos possessed the intent<br />
necessary to be found guilty of aiding and abetting a carjacking if he "shared some knowledge" of<br />
Mr. Sanchez's intent to commit the carjacking.”<br />
United States v. Vallejos, No. 04-2216 (Fed. 10th Cir. 8/19/2005) (Fed. 10th Cir., 2005). The<br />
Tenth Circuit’s most extensive defining of the elements required for aiding and abetting liability is<br />
contained in USA v. Jackson, 213 F.3d 1269 (10th Cir., 2000)<br />
"Whoever ... aids, abets, counsels, commands, induces or procures [the] commission [of a crime] is<br />
punishable as a principal." 18 U.S.C. 2(a). "To be guilty of aiding and abetting the commission of a<br />
crime, the defendant must willfully associate himself with the criminal venture and seek to make the<br />
venture succeed through some action of his own." United States v. Anderson, 189 F.3d 1201, 1207<br />
(10th Cir. 1999). United States v. Smith, 133 F.3d 737, 742 (10th Cir. 1997) ("To be liable as an<br />
aider and abettor under 18 U.S.C. 2, the evidence must establish a defendant associated himself with<br />
a criminal venture; participated in the venture as something he wished to bring about; sought by his<br />
actions to make the venture succeed; and the evidence must establish both the commission of the<br />
offense by someone and the aiding and abetting by the defendant."), cert. denied, 524 U.S. 920<br />
(1998). Thus, the crime of aiding and abetting is a specific intent crime because it requires the<br />
defendant to act willfully by participating in the venture and also requires the defendant to have the<br />
specific intent to make the venture succeed through his or her acts.”<br />
USA v. Jackson, 213 F.3d 1269 at 1292 (10th Cir., 2000). The Jackson court also discussed the<br />
participation requirement for furthering the RICO enterprise:<br />
"[A]cts committed in furtherance of the commission of a crime by another constitute 'abetting.'"<br />
Slater, 971 F.2d at 632 (citation omitted). "Participation in the criminal venture may be established<br />
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y circumstantial evidence and the level of participation may be of 'relatively slight moment.'"<br />
United States v. Leos-Quijada, 107 F.3d 786, 794 (10th Cir. 1997).<br />
In Slater, we rejected the same argument raised by Mr. Jackson and pointed out one<br />
"may 'abet' the crime of possession with intent to distribute by procuring the customers and<br />
maintaining the market in which the possession is profitable, even though you do nothing else to<br />
help the possessor get or retain possession. Middlemen aid and abet the offense of possession with<br />
intent to distribute."<br />
971 F.2d at 632 (quoting with approval United States v. Wesson, 889 F.2d 134, 135 (7th Cir.<br />
1989)). Furthermore, if we were to hold one cannot be convicted of aiding and abetting the<br />
possession of a controlled substance with the intent to distribute without proving possession, this<br />
would be tantamount to holding one cannot be convicted of aiding and abetting without committing<br />
the principal offense. Such a result would dismantle the crime of aiding and abetting. Id. at 632-33.<br />
While the government must show that a defendant engaged in two or more predicate acts to<br />
state a claim under one of RICO's substantive provisions (Section 1962(a), (b), or (c)), Salinas<br />
rejected such a requirement with respect to RICO's conspiracy provision (Section 1962(d)), Philip<br />
Morris, 130 F.Supp.2d at 99, although it did not specifically address the role of the Reves'<br />
"operation or management" test in assessing liability under Section 1962(d).”<br />
USA v. Jackson, 213 F.3d 1269 at 1299 (10th Cir., 2000).<br />
Accordingly, RICO aiding and abetting liability is appropriately defined and does not have to be<br />
determined at trial. <strong>Medical</strong> <strong>Supply</strong>'s Motion for partial summary judgment that a Defendant's liability for<br />
RICO aiding and abetting liability does not have to be determined at trial.<br />
D. WHETHER A LAW FIRM IS IMMUNE FROM CIVIL RICO CLAIMS.<br />
The defendants have argued that the defendant Shughart Thomson and Kilroy is immune from<br />
liability as a RICO defendant. While no law supporting this assertion has been advanced, it would appear<br />
from the renewed motions to dismiss and motions to sanction <strong>Medical</strong> <strong>Supply</strong> and its attorney that law firm<br />
RICO liability is an issue to be resolved in this action.<br />
<strong>Medical</strong> <strong>Supply</strong> researched its claims before filing its complaint in the Western District of<br />
Missouri and found that the Eight Circuit had resolved the issue of whether an inherent civil immunity to<br />
private RICO liability existed for law firms. There is no immunity and a law firm is properly a RICO<br />
defendant.<br />
1. Claims against Law Firms under Section 1962(c) and (d)<br />
The law firm sued for RICO violations in Handeen v. Lemaire 12 F.3d 1339 (8th Cir. 1997)<br />
represented a client who had been convicted of aggravated assault. The victim of the aggravated assault<br />
had obtained a civil judgment against the client. The attorneys counseled the client and his family to avoid<br />
liability on the judgment by filing bankruptcy and then inflating his debts and concealing earnings. The<br />
victim sued the family and the law firm under RICO, alleging that they had violated section 1962(c) by<br />
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conducting the affairs of the bankruptcy estate (the enterprise) through a pattern of racketeering activity.<br />
The district court dismissed the RICO claims (as well as related state law causes of action). The Eighth<br />
Circuit reversed.<br />
The Handeen court conceded that after Reves, RICO liability did not attach to those who<br />
furnished a client (even one engaged in a RICO enterprise) "with ordinary professional assistance" and<br />
that "RICO is not a surrogate for professional malpractice actions." Id. at 1348. Nevertheless, the court<br />
found that Reves did not insulate the law firm from liability fro RICO where the firm, in representing its<br />
clients in a bankruptcy proceeding, allegedly directed the clients to create false promissory notes and other<br />
sham debts to dilute the estate; defended the family's fraudulent claims against objections; prepared filing<br />
and schedules with the court which contained erroneous information; formulated and promoted fraudulent<br />
repayment plans; participated in a scheme to conceal the client's new job (and increased earnings); and<br />
otherwise controlled the bankruptcy estate to permit the client to avoid the judgment against him. Id. at<br />
1350.<br />
“T]his would not be a case where a lawyer merely extended advice on possible ways to manage an<br />
enterprise's affairs . . . Instead, if the Firm truly did associate with the enterprise to the degree<br />
encompassed by the Complaint, we would not hesitate to hold that the attorneys "participated in<br />
the core activities that constituted the affairs of the [estate]. . ."<br />
Id. A multidistrict proceeding arose as a result of allegations that high level executives of<br />
American Honda received kickbacks from various dealers in exchange for favors, primarily increased<br />
allocates of automobiles or the award of new dealerships, in American Honda Motor Co., Inc.,<br />
Dealerships Relations Litigation. 958 F.Supp. 1045 (D. Md. 1997). The claims were not dissimilar to<br />
<strong>Medical</strong> <strong>Supply</strong>’s claims against the defendants for monopolizing hospital supplies through kickbacks from<br />
manufacturers and bribes paid to hospital administrators. Included among the defendants was the law<br />
firm of yon & Lyon, which was accused of participating in the concealment of the illegal scheme. The<br />
plaintiffs asserted RICO violations under section 1962(c) based on acts of alleged mail fraud arising from<br />
the mailing of false statements that American Honda would deal with the plaintiffs fairly and distribute<br />
Honda products to them in a fair and reasonable manner.<br />
The plaintiffs alleged that Lyon & Lyon was not only American Honda's general counsel but also<br />
had attorneys serving as voting directors of the company. Lyon & Lyon conducted training sessions at<br />
sales meetings and handled allegations of misconduct, including conflict of interest complaints involving<br />
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dealers or potential dealers. The plaintiffs alleged that after Lyon & Lyon received dealer complaints<br />
about the kickback scheme, it took action s to conceal the scheme, amounting to obstruction of justice.<br />
Lyon & Lyon attorneys allegedly counseled witnesses to give evasive or incomplete testimony and<br />
intentionally limited an investigation of the kickback allegations by not interviewing key witnesses. Lyon<br />
& Lyon attorneys also allegedly directed American Honda to make false and misleading assertions about<br />
the results of its investigation in a hearing. Id. at 1056-57.<br />
Lyon & Lyon's motion to dismiss the section 1962(c) claim against it was denied. In denying<br />
the motion, the American Honda court initially found that Lyon & Lyon had a sufficient role in the<br />
enterprise's activities to satisfy the Reves "operation or control" test:<br />
[F]or over ten years Lyon & Lyon took on the responsibility of pretending to enforce American<br />
Honda's conflict of interest policy and of not following up on dealer complaints in order to<br />
perpetuate the kickback scheme. Concealment is a necessary element of any ongoing illegal<br />
activity, and a person who is in charge of the coverup plays an operational and management role in<br />
the enterprise conducting that activity.<br />
Id. at 1057. However, the American Honda court did not feel that Lyon & Lyon's participation in<br />
the management of the racketeering enterprise was in and of itself sufficient to impose RICO liability on<br />
the law firm. It is not enough, however, for a defendant to have 'conduct[ed] or participate[d] directly or<br />
indirectly, in the conduct of [an] enterprise's affairs' in order for him to be held liable under § 1962(c). He<br />
also must have done so 'through a pattern of racketeering activity.'" Id. The American Honda court noted<br />
that the predicate acts of racketeering charged by the plaintiffs were acts of mail fraud, and that Lyon &<br />
Lyon did not mail any of the fraudulent materials involved. Id. Moreover, the court did not dispute the<br />
"conventional wisdom that feels that aiding and abetting liability under § 1962(c) does not survive the<br />
Supreme Court's ruling in Central Bank of Denver v. First Interstate Bank of Denver..." Id. at 1057-58.<br />
Nevertheless, the American Honda court concluded that "[t]his does not mean, however, that<br />
aiding and abetting principles do not apply in considering whether a defendant has participated in the<br />
enterprise 'through a pattern of racketeering activity,' i.e., whether he has committed at least two predicate<br />
acts." Id. at 1058.<br />
Rather, where a person involved in the management or control of a racketeering<br />
enterprise aids and abets in the commission of predicate acts, the person faces liability under § 1962(c),<br />
because a distinction must be made between aiding and abetting a violation of section 1962(c) (an offense<br />
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which does not survive the holding of Reves and Central Bank of Denver) and aiding and abetting in the<br />
commission of a substantive offense constituting a predicate act.<br />
“Unless the distinction is recognized, in most cases there would be no principled basis for<br />
imposing § 1962(c) liability upon a class of defendants whom Congress surely intended should be<br />
within the statute's purview: leaders of enterprises who do not themselves commit predicate acts<br />
but who cause others to do so. Id.<br />
. .<br />
Although Lyon & Lyon may only have aided and abetted the commission of the predicate acts of<br />
mail fraud, as indicated above its management role in concealing the scheme is sufficient to meet<br />
the "operation and management" test of Reves. Plaintiffs have therefore stated a viable § 1962(c)<br />
claim against Lyons & Lyons.”<br />
American Honda Motor Co., Inc., Dealerships Relations Litigation. 958 F.Supp. 1045 at 1059 (D.<br />
Md. 1997). American Honda thus suggests that the concealment of a pattern of racketeering by one who<br />
also exercises some element of control over the racketeering enterprise is sufficient to impose section<br />
1962(c) liability.<br />
2. Conspiracy Claims against Law Firms under Section 1962(c) and (d)<br />
Where a plaintiff is able to establish that the professional conspired by agreeing to commit at least<br />
two predicate cats of racketeering in violation of section 1962(d), the plaintiff may be able to state a RICO<br />
violation even without satisfying the "operation or management" standard enunciated in Reves as required<br />
for a claim under section 1962(c). <strong>Medical</strong> <strong>Supply</strong>’s complaint avers Shughart Thomson & Kilroy’s control<br />
over the RICO acts designed to protect and conceal the enterprise’s ongoing scheme to artificially inflate<br />
prices of hospital supplies in the national market in furtherance of the defendants’ scheme to overcharge<br />
Medicare, Medicaid and Champus.<br />
Obviously, to the extent that <strong>Medical</strong> <strong>Supply</strong>’s artful pleading avoids dismissal of a section<br />
1962(d) conspiracy claim against an outside professional firm who cannot be held liable under section<br />
1962(c) because he or she has no voice in directing the affairs of the enterprise, the protections of Reves<br />
may be severely curtailed.<br />
"[C]ourts risk eviscerating Reves by blanketly approving conspiracy convictions when<br />
substantive convictions under section 1962(c) are unavailable . . . As one commentator has<br />
explained, '[i]f Congress' restriction of section 1962(c) liability to those who operate or manage the<br />
enterprise can be avoided simply by alleging that a defendant aided and abetted or conspired with<br />
someone who operated or managed the enterprise, Reves would be rendered almost nugatory.'"<br />
United States v. Antar, 53 F.3d 568, 580-82 (3d Cir. 1995) (citing Smith and Reed, Civil RICO, §<br />
504 at 5-39 (1994)).However, the extent of <strong>Medical</strong> <strong>Supply</strong>’s allegations against Shughart Thomson and<br />
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Kilroy reveal the law firm was the primary agency in securing the objectives of the unlawful enterprise in<br />
artificially inflating hospital supply prices for another three years. The complaint alleges the law firm<br />
conspired with other defendants in the cartel and was the architect of the racketeering campaign against<br />
<strong>Medical</strong> <strong>Supply</strong>’s legal representation outside of court and also the extra legal influence over the Kansas<br />
District Court and the Tenth Circuit.<br />
3.The Parallel to Shook Hardy & Bacon’s Tobacco RICO Conduct<br />
<strong>Medical</strong> <strong>Supply</strong>’s allegations against Shughart Thomson & Kilroy closely parallel the nature of<br />
unlawful racketeering acts committed by Shook Hardy and Bacon LLP and described by US Department of<br />
Justice. U.S. Justice Department attorneys alleged lawyers from Shook Hardy & Bacon LLP acted with<br />
"fraudulent intent" in past efforts to protect cigarette manufacturers from lawsuits. Post-trial documents<br />
filed Aug. 15 and Aug. 24 in a civil racketeering case against tobacco companies mention at least 15 Shook<br />
Hardy lawyers by name and refer to the firm more than 250 times.<br />
A September 2, 2005 Kansas City Business Journal print edition article quoted the Notre Dame<br />
Law School professor G. Robert Blakey who stated the government's many mentions of the lawyers in the<br />
case are "an indication they could have sued them," "Lawyers should not be above the law, but in practice<br />
they are," He said tobacco lawyers were defendants in just two of the 50 states' cases against tobacco<br />
companies. Professor Blakey said it's routine practice to excuse lawyers from conspiracy suits, in part<br />
because of the extra cost of litigating against a law firm's defenses. Professor G. Robert Blakey’s comments<br />
as printed in the Kansas City Business Journal are however critical of the US Department of Justice for not<br />
including the private law firm or its attorneys as civil defendants, saying: "It's an indefensible practice,"<br />
and "It's indefensible if lawyers could have been sued but they were not." See “U.S. attorneys take some<br />
shots at Shook Hardy” Mark Kind, Kansas City Business Journal - September 5, 2005 Exb 1.<br />
Because of the continuing racketeering conduct directed at <strong>Medical</strong> <strong>Supply</strong> and its counsel by<br />
Shughart Thomson & Kilroy, <strong>Medical</strong> <strong>Supply</strong> had to name Shughart Thomson & Kilroy as a defendant<br />
even at the cost of the diversity jurisdiction that would have guaranteed all of its claims are resolved in<br />
federal court. The racketeering controlled and furthered by Shughart Thomson & Kilroy’s employees, past<br />
employees and agents has denied <strong>Medical</strong> <strong>Supply</strong> access to the US Supreme Court and is in imminent<br />
danger of depriving <strong>Medical</strong> <strong>Supply</strong> of its counsel.<br />
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The US Department of Justice’s Proposed Findings of Fact and and Post Trial Brief reveal that the<br />
attorneys including those of the law firm Shook Hardy and Bacon, representing the tobacco companies<br />
expanded litigation fraud to even controlling the nation’s scientific research relating to tobacco for the<br />
purpose of conducting and furthering the goals of the unlawful enterprise. The US Justice Department’s<br />
Post Trial Brief summarizes the RICO conduct of the tobacco companies in a way that makes it clear that<br />
the essential controlling agency and chief instrument of furthering the RICO enterprise were the<br />
management of the fraud by law firms including Shook Hardy and Bacon.<br />
“As indicated previously, however, litigation exposure was not the only reason for the<br />
suppression of scientific information. See Wigand WD, 80:24-81:5. The suppression also acted to<br />
directly support Defendants’ enterprise by utilizing numerous means of concealing information that<br />
would have allowed the American public to learn the truth about smoking, both its addictiveness as<br />
well as its negative health consequences.<br />
• First, Defendants destroyed documents to prevent them from being released outside<br />
of the companies. See, e.g., US 21677 (O) (RJR scientists confirm they will remove documents<br />
from the research and development files if it becomes clear the documents will expose RJR in<br />
litigation); US 34839 (A) at 3682 (in notes of a BATCo meeting in 1986 it was reported that<br />
research documents would be destroyed under the guise of “spring cleaning”).<br />
• Second, Defendants encouraged their employees, particularly scientists, not to create<br />
documents that contained sensitive information, particularly information related to smoking and<br />
health and addiction. BATCO and B&W implemented the “mental copy rule” to prevent the<br />
creation of sensitive documents. The “mental copy” rule asked employees to “imagine that the<br />
memo, note or letter you are about to write will be seen by the person that you would least like to<br />
read it.” The employee is then to “send a ‘mental copy’ of your document to a newspaper, one of<br />
your competitors, a government agency, or potential plaintiff. Now: would you still write the<br />
memo If so -would you still write it in the same way” US 87012 at 4434 (A). See also, US 87003<br />
at 1805-1806 (O) (setting forth Philip Morris’s company policy encouraging employees not to<br />
create sensitive documents because they may one day have to answer for the contents of the<br />
document “while sitting in a witness chair in a court room in a lawsuit”).<br />
• Third, Defendants employed lawyers to review and edit scientific documents to<br />
ensure that no contentious information was included in company files. See, e.g., US FF § III.E, <br />
5116-5127, 5184-5221.<br />
• Fourth, Defendants established company policies to ship or secret scientific<br />
information outside of the United States. For example, Philip Morris established a foreign research<br />
facility known as INBIFO and established company policies to prevent research documents from<br />
the foreign research facility from entering or being kept in the United States. Farone WD, 21:16-<br />
22:9, 147:11-152:15; Farone TT, 10/07/04, 1938:2-1939:16. Similarly in 1994, Tommie Sandefur,<br />
the CEO and Chairman of B&W ordered that its sister companies around the world stop sending<br />
research materials to the United States. Read PD, U.S. v. Philip Morris, 05/01/02, 178:5-16, 179:2-<br />
181:4; (US 47616) (A); Read TT, 3/22/05, 16437:22-16441:12.<br />
• Fifth, Defendants employed company lawyers as repositories or conduits for<br />
scientific documents in an attempt to shield documents from production, even though they were not<br />
truly protected by the attorney-client privilege. One of the most notorious of these arrangements<br />
involved the shipment of BATCo documents to B&W through outside counsel by the name of<br />
Robert Maddox. See US FF § III.E(3), 5136-5179.”<br />
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US Department Of Justice Post Trial Brief Exb 3 Page 85-86. The brief is informed of the outside<br />
professional liability requirement of control or management of the unlawful enterprise and it is clear that<br />
discovery and trial testimony revealed outside lawyers committed conduct meeting the liability standard:<br />
”And as the Court is well aware, Defendants utilized their outside lawyers to further the goals of the<br />
Enterprise, including attorneys such as Janet Brown at Chadbourne & Parke, John Rupp at<br />
Covington & Burling, Andrew Foyle at Lovells, and others at Shook, Hardy & Bacon, Jones Day,<br />
and other firms.”<br />
US Department Of Justice Post Trial Brief Exb 3 Page 12. Like Sam Lipari and his counsel Bret<br />
Landrith ( see affidavit of Sam Lipari Exb. 8), key witnesses were made to fear for their lives in the defense<br />
firm efforts to obstruct justice:<br />
“Defendants also seek to have the Court make an affirmative finding that Robert<br />
McDermott of Jones Day and Lee Stanford of Shook, Hardy and Bacon acted appropriately in their<br />
conversations with Dr. Huber before his 1997 deposition. JD FF, ch. 3, 547. The Court should<br />
reject Defendants’ request. Dr. Huber specifically testified that McDermott and Stanford implied to<br />
Huber that he did not “fully appreciate the full weight of Shook, Hardy & Bacon and Jones Day”<br />
representatives of the tobacco industry; the calls caused Huber to fear for the safety and financial<br />
security of his family. Huber PD, Texas v. American Tobacco, 9/20/97, , 101:4-8, 10-21.”<br />
US Department Of Justice Post Trial Brief Exb 3 FN 22 Page 44.<br />
Another parallel with the <strong>Medical</strong> <strong>Supply</strong> litigation is the role defense law firms directly played in<br />
cutting <strong>Medical</strong> <strong>Supply</strong>’s access to financial inputs in order to starve out the cartel’s opposition and prevent<br />
the litigation from being funded. A critical role of defense counsel in furthering the unlawful enterprise was<br />
in cutting off funding to projects that the Tobacco defense perceived as a threat:<br />
“Defendants’ use of biased research for public relations and litigation purposes is well<br />
documented in the form of funding for CTR Special Projects, CIAR Applied Studies, and other Defendantfinanced<br />
research initiatives such as ETS consultants recruited and managed by Covington & Burling and<br />
Shook, Hardy & Bacon. See US FF §§ I, III.A(1), III.A(2) and III.B. Evidence also unequivocally<br />
demonstrates Defendants’ successful efforts to terminate funding that they found threatening to the<br />
Enterprise. For example:<br />
• When researchers at Microbiological Associates made progress with inhalation research<br />
funded by CTR, Defendants expressed dire concern. Philip Morris scientist Thomas Osdene wrote: “I am<br />
forced of the opinion that the program seems to be misdirected since its main mission seems to be to prove<br />
that smoking causes cancer.” US 247<strong>08</strong> at 3038 (O). Defendants discontinued their funding and, before<br />
publication of results from the work, manipulated the report from the scientists involved and added an<br />
introduction that omitted the scientists’ conclusion that there was carcinogenic response in animals after<br />
exposure to cigarette smoke. See US FF § III.B(2)(ii)(bb).<br />
• Dr. Gary Huber performed research at Harvard University pursuant to a contractual<br />
agreement with B&W, Liggett, Lorillard, RJR, and Philip Morris, and produced humantype diseases in the<br />
lungs of animals that inhaled cigarette smoke. After Huber reported to his tobacco company sponsors that<br />
his research demonstrated a response to inhaled cigarette smoke, including disease mechanisms similar to<br />
those associated with diseases in humans, Defendants cut off funding to Huber. In a 1980 meeting at a<br />
Boston hotel, Defendants’ attorneys told Huber that the reason funding for his research had been<br />
discontinued was because he was “getting too close to some things.” See generally Huber PD, Texas v.<br />
American Tobacco, 9/20/97; US FF § III.A. As the Court is well aware, Defendants subsequently fought to<br />
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keep the Huber story from the public by first, urging to “keep the faith, to hold the line,” when he was<br />
subpoenaed for deposition in 1997, and then employing every strategy at their lawyers’ disposal to keep<br />
the deposition under seal. Seven years after Huber’s deposition, the United States was finally able to obtain<br />
the transcript, over vigorous opposition by Defendants, by initiating a court action in the Eastern District<br />
of Texas. In re United States’ Motion to Modify Sealing Orders, 5:03MC-2 (E.D. Tex. June 8, 2004).”<br />
US Department Of Justice Post Trial Brief Exb 3 Page 43-44.<br />
Conversely, the Department of Justice’s proposed finding of facts illustrate that the law firms<br />
identified as RICO co-conspirators including Shook Hardy and Bacon directed financing so that projects<br />
that would further the unlawful enterprise and perpetuate the deception and death causing fraud received<br />
funds:<br />
“Attorneys at Jacob, Medinger & Finnegan and Shook, Hardy & Bacon kept the<br />
Committee of Counsel apprised of the status of CTR Special Projects and also made<br />
recommendations to Defendants' General Counsel and to each other as to whether projects should be<br />
conducted through CTR Special Projects. TIMN261386-1387 (US 21288) (A); 1005048374-8374<br />
(US 35939) (A). See also Lisanti PD, Arch v. American Tobacco, 6/10/97, 80:9-81:19, 82:10-19.”<br />
US Department Of Justice Proposed Findings of Facts Exb 2 289. Also paralleling medical<br />
<strong>Supply</strong>’s experience with Shughart, Thomson & Kilroy, the Justice Department described Shook, Hardy &<br />
Bacon’s advice, guidance and direction to defendant corporate counsel to deliberately commit fraud in<br />
publicized research and to misrepresent the law:<br />
“For example, on May 19, 1967, William Shinn of Shook, Hardy & Bacon, sent a letter to<br />
Alexander Holtzman, Philip Morris General Counsel, regarding CTR Special Projects, outlining a<br />
proposal to support and publicize research advancing the theory of smoking as beneficial to health<br />
as a stress reducer, even for "coronary prone" persons; representing that stress (rather than nicotine<br />
addiction) explains why smoking clinics fail; and proposing to publicize the "image of smoking as<br />
'right' for many people . . . as a scientifically approved 'diversion' to avoid disease causing stress."<br />
1005<strong>08</strong>3882-3882 (US 20204) (O).<br />
US Department Of Justice Proposed Findings of Facts Exb 2 290. Unfortunately, our legal<br />
system that could not justly resolve the misconduct of tobacco firms for decades is pretty hard wired for<br />
resolving the intentional false statements given investors in the publicly traded NASDQ stock Neoforma,<br />
LLC (NEOF) and our legal system will also quickly allow hospitals to recover funds fraudulently placed in<br />
Novation LLC by VHA and UHC. The outside law firm coordinating the defense ends up approving or<br />
disproving funding commitments in the same way GE and Jeffrey Immelt were directed by the unlawful<br />
cartel’s legal defense (including chief counsel for the separate non defendant GE <strong>Medical</strong> Inc, and the<br />
Chief Counsel for GHX, LLC ) not to honor GE’s real estate contract with <strong>Medical</strong> <strong>Supply</strong>:<br />
“On June 3, 1986, Patrick Sirridge of Shook, Hardy & Bacon sent a letter to the ollowing<br />
General Counsel: Alexander Holtzman of Philip Morris; Wayne Juchatz of Reynolds; Josiah Murray<br />
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of Liggett; Ernest Pepples of B&W; Paul Randour of American; and Arthur Stevens of Lorillard,<br />
recommending approval for additional funding of Henry Rothschild through CTR Special Projects.<br />
507878840-8840 (US 2<strong>08</strong>02) (A).”<br />
US Department Of Justice Proposed Findings of Facts Exb 2 292. The Justice Department’s<br />
brief on page 86 reveals why <strong>Medical</strong> <strong>Supply</strong> was required to make Shughart Thomson & Kilroy a<br />
defendant and why Notre Dame Law School Professor G. Robert Blakey faults the DOJ for not making<br />
Shook, Hardy and Bacon defendants in the tobacco litigation:<br />
“Joint Defendants’ Proposed Findings suggest that the United States’ claims of suppression of<br />
information fail because the evidence adduced at trial represented only disparate actions taken by<br />
individual Defendants, not concerted actions by the Defendants taken together. See, e.g., JD FF, ch. 8, <br />
811, 934. First, this assertion is simply wrong. The evidence at trial confirms that many of the actions to<br />
suppress information were joint efforts by all of the Defendants through the Committee of Counsel,<br />
through other joint organizations, or through Defendants’ law firms, including Covington & Burling and<br />
Shook, Hardy & Bacon. Second, Defendants apply a legal standard that does not exist. There is no<br />
requirement that each and every action taken in furtherance of the enterprise involve more than one<br />
Defendant. It is sufficient that the acts of suppression and destruction were undertaken in furtherance of<br />
the goals of the Enterprise (chiefly, denying causation and addiction and seeking protection against legal<br />
judgments). Contrary to Defendants! contention, no Court has held that a racketeering act must be<br />
“engaged in jointly by Defendants” to constitute a racketeering act that is actionable under RICO.<br />
Instead, it has long been the law under RICO that “it is irrelevant that each Defendant participated<br />
in the enterprise’s affairs through different, even unrelated crimes, so long as [the fact finder] may<br />
reasonably infer that each crime was intended to further or [was related to] the enterprise’s affairs.”<br />
United States v. Elliot, 571 F.2d 880, 902-03 (5th Cir. 1978). Moreover, acts taken in furtherance of the<br />
Enterprise, even before an individual Defendant joined the conspiracy are actionable under Section<br />
1962(d) if they further the objectives of the Enterprise. Salinas v. United States, 522 U.S. 52, 63-64<br />
(1997).”[Emphasis added]<br />
US Department Of Justice Post Trial Brief Exb 3 Page 86. The Justice Department argues that the<br />
findings of fact force a conclusion that the law firms themselves had the requisite fraudulent intent because<br />
individuals at these law firms and other entities undertook actions that were intended to protect against<br />
disclosure of Defendants’ fraudulent scheme and actions to promote its unlawful objectives. This argument<br />
is equally applicable to Shughart Thomson & Kilroy through their lawyer Andrea DeMarea fraudulently<br />
making a Kansas Disicplinary complaint against <strong>Medical</strong> <strong>Supply</strong>’s counsel Bret Landrith when his former<br />
managing and employing partner, now Magistrate James P. O’Hara’s sabotage of the African American<br />
James Bolden’s civil rights case and altered testimony was failing to remove medical <strong>Supply</strong>’s<br />
representation. The purpose of the defendant Shughart Thomson & Kilroy’s action was clearly to starve out<br />
<strong>Medical</strong> <strong>Supply</strong>’s counsel by fixing other unrelated cases and to cause his disbarment all in a deliberate<br />
ongoing scheme to prevent the defendants’ unlawful hospital supply cartel from being exposed and to<br />
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promote the cartel’s continued ability to steal money from Medicare, Medicaid and Champus through false<br />
claims:<br />
“Further, there is substantial undisputed evidence in the record that over the years,<br />
numerous executives and scientists of Defendants participated actively in the oversight and control<br />
of industry activities that were undertaken in execution of and in furtherance of the fraudulent<br />
scheme. These include, for example, the Chief Executive Officers of Philip Morris, Reynolds,<br />
B&W, Lorillard, American, and Liggett who served on the Board of Directors and/or the Executive<br />
Committee of the Tobacco Institute; the General Counsels of the Cigarette Company Defendants<br />
who were members of the Committee of Counsel; the Boards of Directors of CTR and CIAR, both<br />
of which were comprised of employees of Defendants; and the numerous other bodies whose<br />
structures, functions, and activities are described throughout the United States’ Findings of Fact.<br />
See, e.g., US FF §§ I.B (CTR) & I.C (Tobacco Institute).<br />
Similarly, the evidence shows that members of the Enterprise who are not Defendants in<br />
this case – including law firms such as Shook, Hardy & Bacon and Covington & Burling, and other<br />
agents of Defendants – also possessed the requisite fraudulent intent. Individuals at these law<br />
firms and other entities undertook actions that were intended to protect against disclosure of<br />
Defendants’ fraudulent scheme and actions to promote its unlawful objectives. The evidence<br />
of this is identified throughout the United States’ Findings.” [Emphasis added]<br />
US Department Of Justice Post Trial Brief Exb 3 Page 106.<br />
Accordingly, law firms have no special immunity for acts of fraud and racketeering. This court<br />
should summarily resolve that Shughart, Thomson & Kilroy has the capacity to be a RICO person.<br />
CONCLUSION<br />
Whereas the plaintiff has in its supporting memorandum shown that the controlling authority for our<br />
jurisdiction defines each defendant under the facts averred in the complaint to be distinct from the RICO<br />
enterprise, that a defendant's liability for RICO conspiracy does not require that defendant to participate in<br />
the operation or management of the enterprise, that RICO liability extends to aiders and abettors and that<br />
the law firm Shughart, Thomson & Kilroy, Watkins, Boulware, P.C. (Shughart, Thomson & Kilroy) is<br />
properly a RICO Defendant, the plaintiff <strong>Medical</strong> <strong>Supply</strong> respectfully requests the court grant this partial<br />
summary judgment.<br />
Respectfully Submitted<br />
S/Bret D. Landrith<br />
Bret D. Landrith<br />
Kansas Supreme Court ID # 20380<br />
2961 SW Central Park, # G33,<br />
Topeka, KS 66611<br />
1-785-876-2233<br />
1-785-267-4<strong>08</strong>4<br />
landrithlaw@cox.net<br />
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Certificate of Service<br />
I certify that on September 6 th , 2005 I have served the foregoing with the clerk of the court by<br />
using the CM/ECF system which will send a notice of electronic filing to the following:<br />
Mark A. Olthoff , Jonathan H. Gregor, Logan W. Overman, Shughart Thomson & Kilroy, P.C. 1700<br />
Twelve Wyandotte Plaza 120 W 12th Street Kansas City, Missouri 64105-1929<br />
Andrew M. Demarea, Corporate Woods Suite 1100, Building #32 9225 Indian Creek Parkway Overland<br />
Park, Kansas 66210 (913) 451-3355 (913) 451-3361 (FAX)<br />
John K. Power, Esq. Husch & Eppenberger, LLC 1700 One Kansas City Place 1200 Main Street Kansas<br />
City, MO 64105-2122 ( Also attorney for the General Electric defendants and Jeffrey Immelt.)<br />
Stephen N. Roberts, Esq. Natausha Wilson, Esq. Nossaman, Guthner, Knox & Elliott 34th Floor 50<br />
California Street San Francisco, CA 94111<br />
Bruce Blefeld, Esq. Kathleen Bone Spangler, Esq. Vinson & Elkins L.L.P. 2300 First City Tower 1001<br />
Fannin Houston, TX 77002<br />
Attorneys for Defendants<br />
S/Bret D. Landrith<br />
Bret D. Landrith<br />
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UNITED STATES DISTRICT COURT<br />
FOR THE WESTERN DISTRICT OF MISSOURI<br />
KANSAS CITY, MISSOURI<br />
<strong>Medical</strong> <strong>Supply</strong> CHAIN, INC., )<br />
Plaintiff, )<br />
v. ) Case No. 05-0210-CV-W-ODS<br />
NOVATION, LLC<br />
) Attorney Lien<br />
NEOFORMA, INC. )<br />
ROBERT J. ZOLLARS )<br />
VOLUNTEER HOSPITAL ASSOCIATION )<br />
CURT NONOMAQUE )<br />
UNIVERSITY HEALTHSYSTEM CONSORTIUM )<br />
ROBERT J. BAKER )<br />
US BANCORP, NA )<br />
US BANK )<br />
JERRY A. GRUNDHOFFER )<br />
ANDREW CESERE )<br />
THE PIPER JAFFRAY COMPANIES )<br />
ANDREW S. DUFF )<br />
SHUGHART THOMSON & KILROY )<br />
WATKINS BOULWARE, P.C. )<br />
Defendants. )<br />
Affidavit of Sam Lipari on The Unsuitability of Transfer<br />
1. My name is Samuel Lipari, I reside at 297 Bayview in Lee’s Summit Missouri. I am<br />
the chief executive officer of <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc., a company I incorporated in<br />
May of 2000. I chose to bring this new action in Missouri District court because I have a<br />
responsibility to <strong>Medical</strong> <strong>Supply</strong>’s stakeholders and to the shareholders of US Bancorp<br />
NA, The Piper Jaffray Companies and Neoforma, Inc. to adjudicate these claims in<br />
accordance with laws of the United States. I brought two earlier and related actions to<br />
Kansas District court based on the advice of my counsel. I witnessed first hand that no<br />
decision or outcome in either case including from the Tenth Circuit Court of Appeals had<br />
any relationship to the pleadings of my company or applicable law. I make this<br />
determination based on my considerable personal experience as a clerk and researcher for<br />
a Missouri legal firm and upon discussions with what I believe are the foremost<br />
healthcare antitrust authorities in our nation.<br />
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2. I know first hand the consequences to <strong>Medical</strong> <strong>Supply</strong> and the additional liabilities<br />
US Bancorp NA, The Piper Jaffray Companies and Neoforma, Inc. have incurred as a<br />
result of the Kansas District court outcomes and the Tenth Circuit delays. I believe<br />
several of these defendants will no longer be viable after a judgment at law is made on<br />
their conduct.<br />
3. I received a confidential decision by Chief Judge Deanell R. Tacha dated March 23,<br />
2005; a complaint with extensive documented evidence including official court<br />
transcripts and affidavits I made to the Tenth Circuit about the conduct of the Kansas<br />
District Court Magistrate James P. O’Hara and the attorneys of the law firm Shughart,<br />
Thomson & Kilroy described in the lawsuit before this court. Chief Justice Tacha<br />
determined that the conduct described presented an issue about the bias of the forum<br />
<strong>Medical</strong> <strong>Supply</strong> suffered. Included in the complaint was evidence that the bias reached<br />
the Office of the Clerk for the Tenth Circuit Court of Appeals and the person of Patrick<br />
Fischer, Chief Clerk.<br />
4. Early in the Kansas District Court case against the US Bancorp defendants, I<br />
instructed my counsel to write a letter to the Chief Administrative Judge of the Kansas<br />
District Court inquiring as to weather the Kansas District court had the resources to<br />
adjudicate an antitrust matter based on a Sherman Act refusal to deal claim and if we<br />
should transfer the action to a different forum. The Kansas District Court never had the<br />
time, resources or manpower to answer my inquiry and it is my belief after observing first<br />
hand that the Kansas District Court does not have the resources required for me to<br />
prosecute my claims against these defendants.<br />
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5. Beyond the lack of sufficient resources, I was repeatedly struck by the bias and<br />
open hostility exhibited by the Kansas District Court and Tenth Circuit personnel against<br />
the claims of my company and how Kansas government attorneys were enlisted to<br />
retaliate against my counsel for bringing these actions. I believe this is the bias that Chief<br />
Judge Deanell R. Tacha described in her decision dated March 23, 2005. I became<br />
concerned and attended the trial phase of my counsel’s representation of James Bolden,<br />
an African American small business man who had sought out my counsel when Kansas<br />
government attorneys had discouraged or intimidated four of his previous attorneys, the<br />
last of which still has not been found. I assisted in the trial preparation for this case<br />
believing it would be good practice for <strong>Medical</strong> <strong>Supply</strong>’s jury trials.<br />
6. I have now known James Bolden for some time and believe him to be an<br />
extraordinarily honest god-fearing man. I also know that his work vehicle was<br />
firebombed while it was parked next to his home and the Topeka Police Department<br />
refused to even take a police report and that he feared for his life while his case was being<br />
litigated in the Kansas District Court. The injuries and threats made against his witnesses<br />
who I also know and believe are honest made affidavits of the incidents, including the<br />
opposing city attorney, Sherri Price’s threat to criminally prosecute the Topeka business<br />
owner Fred Sanders if he testified in federal court on behalf of James Bolden.<br />
7. The City of Topeka and the Topeka office of the US Attorney threatened and<br />
intimidated other witnesses I have met because of their testimony in Mr. Landrith’s cases.<br />
Affidavits of these incidents were filed in the various Kansas District Court cases and the<br />
response of the Kansas judicial branch was to increase its threats against Mr. Landrith,<br />
one of which was mailed the afternoon Mr. Landrith had called Mark Hunt a former US<br />
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Army officer and an African American to testify in a Topeka Federal courtroom. Mark<br />
Hunt was severely retaliated against for that testimony and Melvin Johnson, a retired US<br />
Postal worker client of Mr. Landrith was also retaliated against by city officials that<br />
night, leaving him homeless. The Topeka office of Eric Melgran the US Attorney caused<br />
Melvin Johnson’s key witness, Rosemary Price to be retaliated against for her<br />
participation in a deposition held in the Topeka federal courthouse a week later.<br />
8. The Kansas District court repeatedly rebuked Mr. Landrith for documenting the<br />
obstruction and deliberate interference of justice that seems to be commonplace in the<br />
Kansas legal culture. Magistrate James P. O’Hara issued a very harsh report against Mr.<br />
Landrith in the Bolden case that seems to be more about <strong>Medical</strong> <strong>Supply</strong>’s case and what<br />
has happened to Shughart, Thomson and Kilroy. The Kansas Disciplinary Administrator<br />
Stanton Hazlett used the report to justify his investigation and prosecution of Mr.<br />
Landrith.<br />
9. I advised Mr. Landrith to file in Kansas District Court to stop the state disciplinary<br />
administrator from prosecuting him for representing an African American and his<br />
American Indian witness. Affidavits in both cases revealed that Kansas state officials<br />
repeatedly obstructed justice and that the opposing counsel Sherri Price had threatened<br />
minority business men with criminal prosecution if they testified in Kansas District court<br />
against the City of Topeka. I knew that since none of this testimony was ever disputed the<br />
District of Kansas would certainly prevent the state from retaliating against Mr. Landrith<br />
for his protected speech on behalf of an African American and his American Indian<br />
witness. Surprisingly, however the District of Kansas judges recused themselves and the<br />
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Tenth Circuit assigned the Chief Judge Dee Benson of the District of Utah who made no<br />
findings of fact or law and dismissed the case with prejudice.<br />
10. I attended the pre trial order conference of the Kansas Disciplinary Administrator<br />
before a three-attorney panel consisting of Sally H. Harris, Michael K. Schmitt and<br />
presided over by Randall D. Grisell. Stanton Hazlett admitted to the panel that the secret<br />
probable cause hearing had excluded official court records and evidence including a reply<br />
brief in the adoption appeal that matched court transcripts refuting each evidentiary point<br />
raised by the adoption attorney seeking to terminate Mr. Price’s parental rights. Stanton<br />
Hazlett admitted he had secured the probable cause to prosecute Mr. Landrith by stating<br />
there was no evidence behind the appeal.<br />
11. Randall D. Grisell and the panel ruled that Mr. Landrith would not be able to<br />
present any evidence or witnesses related to the discriminatory prosecution of himself<br />
while the felony threats to obstruct justice documented in the case and including<br />
opposing counsel were being ignored. Strangely, the panel also ordered the exclusion of<br />
any evidence or witnesses supporting the truth of the underlying litigations. Randall D.<br />
Grisell also ruled that the substantial family interest of Stanton Hazlett in the private<br />
adoption industry and that the chief complaining witness, Kansas state Judge G. Joeseph<br />
Pierron, Jr. held a position on the board of directors of a private $40 million dollar<br />
commercial adoption contractor with the State of Kansas, Kansas Children’s Service<br />
League, Inc. did not require the dismissal and reinvestigation of the complaint. Judge G.<br />
Joeseph Pierron, Jr. had refused to disqualify himself when Mr. Price’s appeal raised<br />
questions about widespread Kansas adoption law violations and the failure of the Kansas<br />
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Social and Rehabilitation Services to ensure compliance with laws designed to prevent<br />
interstate child trafficking.<br />
12. A few days after Mr. Landrith asked to call Frank D. Williams as a witness to<br />
Stanton Hazlett’s pattern and practice of not reading or familiarizing himself with the case<br />
before seeking to prosecute an individual, Kansas state officials in the judicial branch<br />
attempted to seize $50,000.00 in Southwestern Bell stock owned by Frank D. Williams<br />
on a ten year old judgment that had expired without being renewed or served on Mr.<br />
Williams. I believe this was an effort by state officials in the Kansas legal community to<br />
retaliate against witnesses and to threaten and harass witnesses with their misconduct.<br />
Since the <strong>Medical</strong> <strong>Supply</strong> complaint addresses misconduct related to influencing the<br />
Kansas District court, I believe that similar efforts will be made against <strong>Medical</strong> <strong>Supply</strong>’s<br />
witnesses if the case is tried in a Kansas forum.<br />
13. I witnessed the stress mount on Mr. Landrith leading up to the pretrial conference<br />
for the ethics prosecution. It was a dark holiday season as he had to spend an enormous<br />
amount of time preparing evidence for the ethics trial in January. I offered to clerk for Mr.<br />
Landrith during the trial and sat with him during its entirety at the counsel table.<br />
14. On January 19 th 2005 Stanton Hazlett sent another disciplinary complaint letter to<br />
Mr. Landrith. I saw that the ethics trial was not going well for Stanton Hazlett who<br />
seemed entirely unfamiliar with the evidence and exhibited shock and surprise when the<br />
testimony of Hazlett’s own witnesses revealed that court records had been withheld from<br />
Mr. Landrith violating the due process and Sixth Amendment rights of his clients and that<br />
actions had been taken to deceive the court in the underlying cases.<br />
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15. Even though the bad faith basis for the prosecution had become overwhelmingly<br />
clear, Stanton Hazlett argued (looking to Andrew DeMarea’s complaint for the<br />
inspiration that an appeal could be frivolous even though the ruling contradicts both<br />
statue and controlling case law and in the face of documented trial court misconduct) that<br />
Mr. Landrith should never have accepted the appeal of the indigent David Price when his<br />
appointed attorney had withdrawn before the conclusion of the trial court case and the<br />
trial court had refused to hear any of Mr. Price’s pro se motions or allow him access to<br />
records required for post trial representation. This struck me as a living nightmare that the<br />
State of Kansas was so far removed from lawfulness and the constitution that I was<br />
thankful I don’t live there.<br />
16. At the conclusion of Mr. Landrith’s ethics trial, Sally H. Harris, Michael K. Schmitt<br />
and Randall D. Grisell stated that they had found Mr. Landrith guilty of something but<br />
were not sure yet what it was. Stanton Hazlett then argued that the only possible<br />
punishment was disbarment.<br />
17. Following the hearing I observed Magistrate O’Hara lagging behind in an effort to<br />
communicate with Stanton Hazlet and the three judge panel. Throughout this hearing<br />
there were several occasions were Stanton Hazlet and the three-judge panel had what<br />
appeared to be private off the record conversations.<br />
18. Mr. Landrith asked me to accompany him to a meeting with John Ambrosio, a<br />
Topeka attorney Stanton Hazlett had directed to investigate the complaint made by<br />
Andrew DeMarea of Shughart Thomson and Kilroy who was representing counsel for the<br />
defendant US Bank in the <strong>Medical</strong> <strong>Supply</strong> case. Mr. Landrith had told me he had<br />
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answered the complaint and sent additional documents, but John Ambrosio had sent<br />
several letters threatening disbarment if Mr. Landrith did not attend a meeting.<br />
19. Bret Landrith also arranged for Mr. Dennis Hawver to accompany us to the meeting<br />
since Mr. Hawver was investigating filing a legislative claim on behalf of Mr. Landrith<br />
for the enormous burden the repeated bad faith prosecutions by Stanton Hazlett in<br />
retaliation for Mr. Landrith’s representing minority Kansans who were injured by state<br />
officials violating Kansas law. When we got there John Ambrosio’s wife Kathleen<br />
Ambrosio who Janice King, a voluntary process server for Mr. Landrith told me had been<br />
assigned by the Kansas Judicial branch to assist a divorce attorney opposing her claims<br />
for child support in the Tenth Circuit stood around listening to our conversations. Then<br />
we were taken to John Ambrosio’s office.<br />
20. John Ambrosio was introduced to me and did not recognize my name even though<br />
he had insisted Mr. Landrith attend this meeting to be questioned about the <strong>Medical</strong><br />
<strong>Supply</strong> case. I heard Mr. Landrith call his attention to the fact that he had been threatened<br />
several times by John Ambrosio if he did not make himself available for questioning<br />
about the case yet Ambrosio had clearly made no preparations and was unfamiliar with<br />
the complaint or the documents furnished by Stanton Hazlett. Furthermore Mr. Landrith<br />
complained that Stanton Hazlett had been prosecuting him for over two years, making it<br />
impossible to earn a living and that he had been told he would be disbarred on the earlier<br />
claims.<br />
21. John Ambrosio insisted I leave and that I not witness the meeting but Mr. Hawver<br />
could stay. Mr. Landrith declined to be interviewed without my presence and I heard<br />
John Ambrosio threaten Mr. Landrith again with disbarment stating that if Mr. Landrith<br />
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didn’t cooperate he would respond to Stanton Hazlett stating that everything Andrew<br />
DeMarea had alleged would be reported as true since Mr. Landrith was unwilling to<br />
refute it.<br />
22. At that moment I knew the meeting had been arranged solely to harass Mr. Landrith<br />
for representing me. Despite being paid by the State of Kansas to do an ethics<br />
investigation, John Ambrosio had not even bothered to read Andrew DeMarea’s<br />
complaint. Like Sherri Price, the City of Topeka attorney relaying Magistrate James<br />
O’Hara’s order, Andrew DeMarea was smart enough to sign his name only to the cover<br />
page relaying without subjective comment a ruling designed to injure Mr. Landrith for his<br />
representation, neither alleged any wrongdoing against Mr. Landrith. I could see that<br />
despite John Ambrosio’s visible intent to severely frighten Mr. Landrith if he did not<br />
meet without a witness, John Ambrosio had not bothered to review the case.<br />
23. When the defendants realized they had to answer my action in Missouri, I<br />
experienced the intensified presence of law enforcement officials. Including uniformed<br />
and plain-clothes surveillance. I believe two plain clothes officers arranged to meet and<br />
question me. I was questioned extensively about GPO practices and how I was able to<br />
finance my litigation. I believe the justification for this investigation was the USA<br />
PATRIOT Act suspicious activity report filed against my company and me over two<br />
years ago.<br />
24. I know the suspicious activity reports were filed because my father has my same<br />
name and the secret reports disrupted the financial operations of my father’s trucking<br />
company at the time causing him significant loses in income and stress arising from the<br />
decreased income and the threats of foreclosure on the home he and my stepmother<br />
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shared. The stress aggravated their physical health and my stepmother died from a stroke<br />
later that year.<br />
25. I believe the impetuous for the investigation however was the requests made by the<br />
defendants to government officials in Missouri starting once the Missouri action was<br />
filed. I went to the FBI office in Kansas City, Missouri with supporting documentation<br />
and the information described in the complaint about the defendants actions to retaliate<br />
against my attorney Mr. Landrith in their plan to impede the administration of justice.<br />
26. No action was taken on my complaint and the law enforcement officials did not<br />
start surveillance of my home until the defendants requested it. I believe the surveillance<br />
was unproductive in that it did not serve the goals of the government officials who had<br />
attempted to accommodate the defendants. I believe this resulted in my fiancé who I lived<br />
with for four years and whose daughter we were arraigning for me to adopt as father was<br />
being targeted. When she was pressured repeatedly to find something unlawful I was<br />
doing, it led to our relationship being canceled and I lost my home.<br />
27. I moved in with my father and live in his basement. I believe that this residence and<br />
my office in it has been searched while we were out, again under the justification of the<br />
USA PATRIOT Act suspicious activity report filed against my company and me over<br />
two year ago but for the purpose of finding something that could be used to stop my<br />
litigation.<br />
28. I continue to experience Internet research interruption and email delays even though<br />
I believe the Missouri officials are satisfied as to <strong>Medical</strong> <strong>Supply</strong>’s claims and the<br />
lawfulness of our litigation against the defendants. I am hopeful they will enforce the law<br />
and protect the witnesses of every party. The events that appeared to have occurred in<br />
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Texas, California and Kansas when persons have challenged the defendants’ monopoly<br />
make this action’s location in Missouri necessary for all the safety of all involved.<br />
29. Unfortunately, I am experiencing the fallout from law enforcement officials on the<br />
Missouri side discovering that <strong>Medical</strong> <strong>Supply</strong>’s claims were justified and that nothing<br />
unlawful is being done in my litigation against the defendants. Kansas state officials in<br />
the judicial branch, including Stanton Hazlett have contacted persons in the last two<br />
weeks to relay their intentions to me. This is on its face unlawful because Stanton Hazlett<br />
is required to keep that information confidential until the complaint is filed. One such<br />
person who had a conversation with Stanton Hazlett has made it clear that Mr. Landrith<br />
will be disbarred regardless of the law or evidence in the record. While this threat<br />
imperils <strong>Medical</strong> <strong>Supply</strong>’s chance for justice in this litigation, the threat accompanied<br />
offers to “save” <strong>Medical</strong> <strong>Supply</strong>. This involves replacing <strong>Medical</strong> <strong>Supply</strong>’s counsel with<br />
a Kansas attorney as lead counsel I feel Stanton Hazlett believes he and Magistrate<br />
O’Hara can control. I was offered the $300,000.00 US Bancorp deprived <strong>Medical</strong> <strong>Supply</strong><br />
of to capitalize my company’s entry to market if I would agree to this arrangement. While<br />
this is being suggested to me repeatedly to the point that it is becoming a pressure, the<br />
suggested attorneys have no antitrust experience or familiarity with the present actions.<br />
30. I believe Stanton Hazlett and Magistrate O’Hara are acting in the interests of the<br />
defendant Shughart Thomson & Kilroy to use their control over the enforcement of<br />
Kansas Attorney Ethics rules to change counsel so that evidence of Shughart Thomson &<br />
Kilroy’s actions in furtherance of the defendant’s conspiracy will not be subjected to<br />
discovery, accomplishing the conspiracy’s short term objective of concealing what was<br />
done to influence the Kansas District Court and the defendant conspiracy’s long term<br />
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objective of eliminating liability for their conduct. Because the conspiracy so overtly<br />
seeks to control and prevent the presentation of evidence regarding the occurrences in<br />
Kansas District court and the motivations for what was done to Mr. Landrith while<br />
suppressing evidence of misconduct including felony obstruction of justice, witness<br />
intimidation and harassment related to Mr. Bolden and Mr. Price’s entirely unrelated<br />
cases.<br />
31. Chief Judge Deanell R. Tacha’s confidential decision clearly casts the Sherman<br />
Antitrust Act and 18 U.S.C.§ 241 as “frivolous” laws. This also comports with the Tenth<br />
Circuit’s formal opinions regarding <strong>Medical</strong> <strong>Supply</strong>’s antitrust claims. Since my<br />
company cannot enter the market unless the conspirators exerting monopolistic control<br />
over the market are enjoined from further planned actions to exclude competition and<br />
discouraged from the belief that US antitrust law will not be enforced in the ecommerce<br />
delivery of hospital supplies, I must bring my company’s claims to a jurisdiction that will<br />
follow US Antitrust law. I believe that excludes the Kansas District court and its<br />
appellate circuit.<br />
32. At the time my counsel has twelve days to answer about 20 motions seeking the<br />
dismissal and transfer of this case, Stanton Hazlett is misleading the Tenth Circuit into<br />
dismissing the motion to enjoin further disbarment proceedings during the pendancy of<br />
Mr. Landrith’s civil rights cases (he still has to represent Mr. James Bolden) based on<br />
Stanton Hazlett’s misrepresentations that the appeal is moot because Mr. Landrith is not<br />
being disciplined, then, Stanton Hazlett filed a recommendation of disbarment against<br />
Mr. Landrith in the Kansas Supreme Court on April 14, 2005 without retracting his Tenth<br />
Circuit Motion to dismiss.<br />
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33. The defendants seek to transfer <strong>Medical</strong> <strong>Supply</strong>’s case to Kansas. I have feared for<br />
my life during parts of this litigation especially after calling the Ft. Worth, TX office of<br />
the US Attorney to ask to speak to the attorney that issued the criminal subpoenas against<br />
my cases defendants and being told she was dead and then finding out that the FCA<br />
attorney had died shortly before her. It is my belief that I would be putting witnesses in<br />
jeopardy if this action were conducted in Kansas and that would principally be a result of<br />
the hostility the Kansas District court has for victims of witness intimidation and<br />
harassment and the obvious willingness of the Kansas judicial branch to assist in the<br />
harassment and intimidation. Certainly, it would be unlikely that law enforcement<br />
officials could bring anyone to justice in that environment.<br />
34. I do believe the State of Missouri will uphold the laws against witness and victim<br />
harassment and secure the protection of all parties. In Missouri, law enforcement officials<br />
appear to have already looked into this litigation at the request of the defendants and I<br />
also have my up most confidence in them<br />
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CITIZEN’S CRIMINAL COMPLAINT<br />
This complaint is made by Bret Landrith, counsel for <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc.,<br />
(herein “<strong>Medical</strong> <strong>Supply</strong>”), a Missouri Corporation located at 1300 NW Jefferson Court,<br />
Blue Springs, MO 64015.<br />
<strong>Medical</strong> <strong>Supply</strong> has been the victim of Hobbs Act extortion, obstruction of justice<br />
and Sherman Act §§1 and 2. <strong>Medical</strong> <strong>Supply</strong> was the last ecommerce hospital supply<br />
marketplace not controlled or acquired by Novation, LLC or Premier Purchasing<br />
Partners. <strong>Medical</strong> <strong>Supply</strong> attempted to enjoin the actions being taken against it with two<br />
civil law suits filed in Kansas District Court. Unfortunately, <strong>Medical</strong> <strong>Supply</strong> continued to<br />
suffer extortion, and its counsel was subjected to intimidation and harassment. Both cases<br />
were compromised by the defendants corrupt influence over forum.<br />
This complaint outlines the conduct committed against <strong>Medical</strong> <strong>Supply</strong> during the<br />
prosecution of the case. Outside of corruptly influencing the court, US Bancorp NA filed<br />
a malicious suspicious activity report under the USA PATRIOT Act to prevent <strong>Medical</strong><br />
<strong>Supply</strong> from having access to banking services and effectively kept it from entering the<br />
market for hospital supplies.<br />
Two US Attorneys that appeared connected to the criminal investigation of<br />
Novation, LLC have died and three more in the Ft Worth office of the US Department of<br />
Justice with antitrust expertise have been dismissed. <strong>Medical</strong> <strong>Supply</strong> does not believe<br />
there is currently an active criminal investigation of the supplier side of hospital<br />
Medicare false claims.<br />
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The Hon. Magistrate Judge James P. O’Hara engaged in conduct prejudicial to the<br />
effective and expeditious administration of the business of the courts. The complainant<br />
believes that Judge James P. O’Hara used his magistrate’s office to obtain special<br />
treatment for his former law firm Shughart, Thomson & Kilroy and improperly engaged<br />
in discussions with lawyers or parties to cases in the absence of representatives of<br />
opposing parties, and other abuses of judicial office.<br />
TENTH CIRCUIT CASES EFFECTED<br />
<strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> v US Bancorp, NA.; Case No. 02-3443, 03-3342<br />
<strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> v General Electric Co.; Case No. 04-3075, 04-3102<br />
Bolden v City of Topeka; Case No. 04-3306<br />
STATEMENT OF FACTS<br />
1. The. Hon. Judge James P. O’Hara is a magistrate in the District of Kansas with an<br />
office in Kansas City, Kansas federal courthouse.<br />
2. Before becoming a magistrate, Judge O’Hara was the managing partner and<br />
shareholder in the law firm Shughart, Thomson & Kilroy where he worked for 18 years<br />
and managed the firm’s Overland Park, Kansas office. The firm’s website continues to<br />
list him in a biographical press release giving the impression they have significant<br />
influence in the Kansas District Court. Atch. 1<br />
3. The Kansas District Court biography of Judge O’Hara states that he started in the legal<br />
profession as a law clerk for the Kansas Attorney Disciplinary Administrator’s office and<br />
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states that he has served on several Kansas attorney disciplinary committees while<br />
working for Shughart, Thomson & Kilroy.<br />
4. The complainant, Bret D. Landrith, Esq. undertook the representation of <strong>Medical</strong><br />
<strong>Supply</strong> <strong>Chain</strong>, Inc. in an action against U.S. Bancorp NA, several of its subsidiaries and<br />
officers, an independent legal identity named as Unknown Healthcare Supplier and<br />
several identified coconspirators which were not to be named as defendants until<br />
discovery. The complaint sought injunctive and declaratory relief for Sherman §§ 1and 2<br />
antitrust violations and pendant state claims related to the theft of intellectual property<br />
and contract.<br />
5. The firm Shughart, Thomson & Kilroy (STK) represented all the defendants except the<br />
Unknown Healthcare Supplier and the defense was argued by STK’s Overland Park<br />
office attorney Andrew M. DeMarea at two preliminary injunctive relief hearings.<br />
6. DeMarea did not appear familiar with the subject matter of the case, believing it to be<br />
about health insurance instead of hospital supplies and did not refute that he had not read<br />
the motions from the case in the second hearing:<br />
“The transcripts added to the record confirm that US Bancorp’s counsel was<br />
unfamiliar with the motions and pleadings that were the subject of the two<br />
hearings. US Bancorp’s counsel stated repeatedly and erroneously the issues were<br />
health insurance and pricing and appeared at all times to be very far a field from<br />
the subject matter of the case.”<br />
<strong>Medical</strong> <strong>Supply</strong> Reply Brief, pg. 2, Case No. 02-3443.<br />
7. The case is of great importance to the 1.8 trillion dollar hospital supply industry where<br />
<strong>Medical</strong> <strong>Supply</strong> was the last remaining independent electronic marketplace for hospital<br />
supplies in a national market controlled by a hospital supply group purchasing monopoly<br />
that has been the subject of three US Senate Judiciary Antitrust Sub Committee hearings.<br />
The second of which discussed the conduct committed against <strong>Medical</strong> <strong>Supply</strong> by US<br />
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Bancorp and its investment bank subsidiary and also described the later conduct<br />
committed against <strong>Medical</strong> <strong>Supply</strong> by General Electric. Atch. 2<br />
8. The denial of preliminary injunctive relief resulted in <strong>Medical</strong> <strong>Supply</strong> seeking an<br />
interlocutory appeal, which surprised both the presiding judge, Hon. Carlos Murguia and<br />
visibly angered Andrew M. DeMarea even though this outcome was extensively briefed<br />
in the motion being heard.<br />
9. The denial of temporary relief caused <strong>Medical</strong> <strong>Supply</strong> to lose the $350,000.00 it had<br />
raised from its representative candidates to enter the market for hospital supplies.<br />
<strong>Medical</strong> <strong>Supply</strong> also lost its intellectual property including its proprietary trade secrets,<br />
business models and algorithms. Some of the intellectual property was later incorporated<br />
into the US Bancorp’s hospital supplier co-conspirator’s business practices.<br />
10. A series of state disciplinary actions started to be taken against <strong>Medical</strong> <strong>Supply</strong>’s<br />
counsel, who had attempted to earn a living as a solo civil rights practioner while<br />
awaiting the Tenth Circuit’s ruling on the <strong>Medical</strong> <strong>Supply</strong> case.<br />
11. Hon. Judge James P. O’Hara had knowledge of the first two disciplinary complaints<br />
made against Bret Landrith for representing an African American James Bolden and his<br />
chief witness, David Price in separate Kansas Court of Appeals case. The complaints<br />
were not made by the clients but instead by a motions attorney for the state court and in<br />
later testimony it was discovered that it was the conduct accurately describing denial of<br />
equal protection and due process rights suffered by the clients in bringing the appeal that<br />
prompted the complaint. Atch. 3.<br />
12. With knowledge of the discriminatory treatment depriving James Bolden of access to<br />
Shawnee District Court records and an opportunity to litigate his appeal, Hon. Judge<br />
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James P. O’Hara at a pre trial order conference in the concurrent federal civil rights<br />
action attacked Bret Landrith as incompetent, inviting James Bolden to sue his counsel<br />
for malpractice and suggesting that Bolden could better represent himself pro se. Atch. 4.<br />
13. Judge O’Hara reiterated these same statements in his report and recommendation to<br />
the presiding judge, which he directed to be mailed in certified delivery to James Bolden.<br />
Atch. 5.<br />
14. The basis for these attacks on Bret Landrith turned out to be pretextual. Controlling<br />
law clearly makes the City responsible for the conduct of its officers in their official<br />
capacity. A fact Judge O’Hara well knew and in an unrelated pretrial order conference<br />
the following day accepted the voluntary stipulation of parties that all officials be<br />
voluntarily dismissed. Judge O’Hara also stated as much in a footnote to his report. Atch.<br />
5.<br />
15. The reason for Judge O’Hara’s targeting of Bret Landrith appears to be in retaliation<br />
for his representation of <strong>Medical</strong> <strong>Supply</strong> where SKT’s failure to appreciate the extreme<br />
risk to their clients resulted in a litigation record that clearly made SKT the guarantor of<br />
any damages that might be awarded against US Bancorp. This is consistent with his sua<br />
sponte pretrial order statements about malpractice insurance when it was clear that even<br />
if Bolden was deprived of individual defendants, the City was the party financially liable.<br />
Piper Jaffray conducted a study showing a web based electronic marketplace like <strong>Medical</strong><br />
<strong>Supply</strong> would save over $20 billion dollars in hospital supply costs.<br />
16. Sherri Price the counsel for the City of Topeka who relied entirely on Magistrate<br />
O’Hara to represent her clients during the pretrial order conference filed an ethics<br />
“complaint” against Bret Landrith. The “complaint” stated that Mr. Landrith had included<br />
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the earlier ethics complaint as an attachment to Bolden’s pleadings which is not a<br />
violation of the Kansas Rules of Professional Conduct and Sherri Price incorporated by<br />
reference Magistrate O’Hara’s Report and Recommendation, making no observations of<br />
assertions of Mr. Landrith’s misconduct of her own. Atch. 6.<br />
16. Andrew DeMarea failed to file a reply brief in the interlocutory appeal for the US<br />
Bancorp appellees. The Tenth Circuit court clerk called him two days later to remind him<br />
and urged him to file for an extension one day beyond the date the brief was due and<br />
seven days beyond the deadline for a motion for extension of time under 10th Cir. R.<br />
27.4(F). Atch. 7.<br />
17. Andrew DeMarea refused to turn in a parties case management conference report on<br />
the form required by local rule in the Kansas District Court. He repeatedly assured<br />
Magistrate Waxe during the first case management conference that the <strong>Medical</strong> <strong>Supply</strong><br />
case would be dismissed.<br />
18. Mark Olthoff, an attorney for SKT in their Kansas City, MO office appeared to write<br />
all pleadings and briefs for the defendants until the second appeal where he appears to<br />
have been replaced by Susan C. Hascall of the Kansas City, MO office who was a Tenth<br />
Circuit Court of Appeals law clerk through 2000.<br />
19. Mark Olthoff’s trial pleadings repeatedly misstated and misrepresented <strong>Medical</strong><br />
<strong>Supply</strong>’s Amended Complaint and pleadings to the court, even after it had been<br />
repeatedly drawn to the court’s attention that Mr. Olthoff was exploiting the court’s<br />
reliance on the experience of SKT and was neglecting to read or consider <strong>Medical</strong><br />
<strong>Supply</strong>’s pleadings. In its order, the court even admonished Bret Landrith for failing to<br />
research law and facts that the record evidences had been researched. The negligence was<br />
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entirely that of Mr. Olthoff and the court’s or a result of the court’s misplaced reliance on<br />
Mr. Olthoff.<br />
20. The <strong>Medical</strong> <strong>Supply</strong> action against US Bancorp was dismissed but not on arguments<br />
or authorities presented by SKT’s dismissal memorandum. The first findings of law and<br />
fact made by the court in the case were sua sponte and both were clearly erroneous.<br />
21. The court did not respond to <strong>Medical</strong> <strong>Supply</strong>’s arguments for reconsideration or<br />
correct its factual errors. It is believed that Judge O’Hara obtained the magistrate<br />
assignment to <strong>Medical</strong> <strong>Supply</strong>’s case against General Electric because of his relationship<br />
to SKT and it provided an opportunity to address the same fact pattern as the earlier case<br />
because GE breached its contract with <strong>Medical</strong> <strong>Supply</strong> once the electronic marketplace<br />
GHX, LLC created by GE and its hospital supplier competitors discovered <strong>Medical</strong><br />
<strong>Supply</strong> was attempting again to enter the market for hospital supplies.<br />
22. On January 14 th , 2005, Andrew DeMarea was directed to file an ethics complaint<br />
against Bret Landrith. Like the “complaint” filed by Sherri Price, no allegations of<br />
misconduct appear in DeMarea’s complaint, it merely incorporates by reference attached<br />
<strong>Medical</strong> <strong>Supply</strong> filings in the District Court and the Tenth Circuit and the appellate<br />
panel’s sanction of Bret Landrith for a “frivolous appeal.” The “complaint” also<br />
contained <strong>Medical</strong> <strong>Supply</strong>’s motion for en banc review of the sanctions. See Atch. 8 The<br />
sanction order itself admitted the trial court and the hearing panel were mistaken in<br />
stating there was no private right of action contained in the USA PATRIOT Act.<br />
However, it is unfortunately clear that Judge O’Hara, Olthoff and DeMarea have no<br />
interest in the law, only in perpetuating a smear of <strong>Medical</strong> <strong>Supply</strong>’s counsel, despite<br />
clear Tenth Circuit and Supreme Court authority that the sole check on judicial<br />
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misconduct that can remedy its effect is appeal. Ramirez v. Oklahoma Dept. of Mental<br />
Health, 41 F.3d 584 at 589-90 (C.A.10 (Okl.), 1994).<br />
23. Judge O’Hara used his position as magistrate assigned to the <strong>Medical</strong> <strong>Supply</strong> action<br />
against General Electric to deny <strong>Medical</strong> <strong>Supply</strong> discovery. A decision he also made in<br />
the Bolden case. On January 20, 2005 Judge O’Hara testified under oath that he had only<br />
denied discovery in a few cases. He stated he was unaware of any other case he was<br />
assigned where Bret Landrith was an attorney. He visibly winced when he was then<br />
questioned if he was a magistrate in <strong>Medical</strong> <strong>Supply</strong> v. General Electric et. al. where Bret<br />
Landrith was the sole counsel for the plaintiff. See Atch. 9. ( transcript to be<br />
supplemented)<br />
24. The disciplinary tribunal heard arguments that Judge O’Hara was the complaining<br />
witness in fact for the complaint made by the assistant city attorney against Bret Landrith.<br />
Sherri Price made no independent allegations or observations of misconduct against Bret<br />
Landrith and merely incorporated by reference Magistrate O’Hara’s report and<br />
recommendation from Bolden’s pretrial conference. The disciplinary tribunal ordered<br />
Judge O’Hara to drive to Topeka and testify under oath. See Atch. 9.<br />
25. Judge O’Hara added to his attacks against Bret Landrith with further statements<br />
impugning Bret Landrith’s competence. . Judge O’Hara testified that James Bolden’s<br />
counsel was the worst attorney he had seen in 20 years. Magistrate O’Hara alleged that<br />
Mr. Landrith did not have the skill or knowledge of the law a first year law student would<br />
possess. See Atch. 9.<br />
26. Judge O’Hara made a point of addressing facts that weakened the Kansas<br />
Disciplinary Administrator’s case from the previous two days and made these assertions<br />
8<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5810
unsolicited from the questioning of the Disciplinary Administrator and demonstrated a<br />
pre appearance coaching or consultation with Stanton Hazlett, especially on the point<br />
about Bret Landrith’s competence being less than that of a first year law student. Judge<br />
O’Hara could not have known that Landrith had testified the previous day that many<br />
states permit law students to represent clients in civil rights actions because of the<br />
shortage of counsel willing to undertake this difficult and unlucrative work. See Atch. 9.<br />
27. Judge Vratil, the presiding Judge on Bolden’s case upheld Magistrate O’Hara’s<br />
recommendations which cut out many claims based on City of Topeka policies that had a<br />
negative impact on members of a protected class. Judge Vratil relied on Magistrate<br />
O’Hara’s judgment that the affidavits of misconduct against process servers and Bolden’s<br />
witnesses provided no basis for relying on the City’s unqualified appearance as effective<br />
service under the alternative use of Kansas serevice of process rules and provided no<br />
basis for extending discovery. Judge Vratil also demonstrated an impression that Bret<br />
Landrith was mentally incapable of arguing motions before the court in the final case<br />
management conference before trial which appeared to be the result of Magistrate<br />
O’Hara’s influence. Later Judge Vratil was able to make an independent judgment of<br />
Bret Landrith’s competence demonstrated by Bolden prevailing on some motions<br />
disputed before trial.<br />
28. When Judge O’Hara returned to Kansas City, events still seemed to be set against Mr.<br />
Bolden’s cause. The notice that the record on appeal was complete was erroneously given<br />
to the Tenth Circuit, though the mistake was clear from the appearance docket that two<br />
transcripts that had been ordered still were not part of the record. The appeals clerk for<br />
9<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5811
Kansas District court would not correct the record, Bolden made a motion to correct the<br />
record, which was not addressed by Magistrate O’Hara. See Atch. 10<br />
29. Bolden’s motion for an extension of time was sent to both the Tenth Circuit and the<br />
Kansas District Court. However it did not appear on the Tenth Circuit Court of Appeals<br />
appearance docket. Bolden’s counsel called the Tenth Circuit and a deputy clerk<br />
identified as Kathy stated that it had been received two days before but it was still not<br />
docketed. After the call Kathy reentered on the docket that Bolden’s brief was due<br />
January 26 th . See Atch. 11<br />
30. On the same day, counsel called the Kansas District Court appeals clerk who stated<br />
she was working on the letter correcting the date the record was complete. However, this<br />
letter did not appear on the docket the 25 th or even the 26 th . Bolden’s counsel was forced<br />
to work without sleep to file an incomplete appellate brief on the 26 th emailing the brief<br />
to the court and counsel for the City and turning in the briefs and appendixes to US Postal<br />
Delivery service for the Tenth Circuit and the City of Topeka. See Atch. 12<br />
31. Both the Kansas District Court correction of the record on appeal and the Tenth<br />
Circuit docketing of the motion for extension occurred after the brief and appendix was<br />
received, giving the appearance to an impartial observer that the events were coordinated<br />
to manufacture an ethics violation for Bolden’s counsel after the failure of previous<br />
attempts.<br />
32. James Bolden is unable to find counsel to represent him in defending against the final<br />
steps of the City of Topeka to take his two properties for a public use without<br />
compensating him.<br />
10<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5812
33. Bret Landrith is unable to take civil rights clients because his speech has been chilled<br />
by the action of Judge O’Hara through the Kansas Office of the Disciplinary<br />
Administrator and he is likely to be disbarred for conduct required by the Kansas Rules<br />
of Professional Conduct.<br />
34. In an order where Bret Landrith was neither a party or attorney, Magistrate James P.<br />
P’Hara stated Bret Landrith was incompetent. During testimony under oathe, Magistrate<br />
O’Hara stated he could not recall ever stating in an order where Mr. Landrith was not an<br />
attorney that Mr. Landrith was incompetent. See Atch 13.<br />
STATEMENT OF VIOLATIONS<br />
Allegations of Conduct Violating Judicial Cannons:<br />
I. Judge James P. O’Hara’s name is being used in the Shughart, Thomson & Kilroy<br />
corporate web site, falling within the proscription of Kansas Judicial Canon 2B wherein it<br />
is stated . . . “a judge . . . should not lend the prestige of his office to advance the private<br />
interests of others.”<br />
II. Judge James P. O’Hara has violated Kansas Judicial Canon 2, which in substance,<br />
provides that the judge not only must avoid impropriety, but also the appearance of<br />
impropriety.<br />
III. Judge James P. O’Hara has violated Kansas Judicial Canon 3C(1)(b), which in<br />
substance, provides that a judge should disqualify himself in a proceeding in which his<br />
impartiality might reasonably be questioned, including but not limited to instances where<br />
11<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5813
he served as a lawyer in the matter in controversy, or a lawyer with whom he previously<br />
practiced law served during such association as a lawyer concerning the matter.<br />
IV. Judge James P. O’Hara has violated Kansas Judicial Canon 3C(1)(c) which provides,<br />
in substance, that a judge should disqualify himself when he knows that he has a financial<br />
interest in the subject matter in controversy, or any other interest that could be<br />
substantially affected by the outcome of the proceeding. “Financial interest” is defined in<br />
Canon 3C(3)(c) as ownership of a legal or equitable interest, however small. Judge James<br />
P. O’Hara<br />
V. Judge James P. O’Hara has violated Kansas Judicial Canon 2, which in substance,<br />
provides that the judge not only must avoid impropriety, but also the appearance of<br />
impropriety.<br />
Allegations of criminal conduct:<br />
VI. Judge James P. O’Hara has violated James Bolden’s civil rights in causing the<br />
intimidation and harassment of James Bolden’s counsel Bret Landrith and by<br />
encouraging the intimidation and harassment of James Bolden and his witnesses under<br />
the color of Kansas law to deprive them of the right to representation, redress, freedom of<br />
speech and to give testimony by City of Topeka officials. Judge O’Hara’s conduct<br />
violates 18 U.S.C.§ 241, 18 U.S.C. §1513(b).<br />
VII. Judge James P. O’Hara has participated in a conspiracy between Shughart, Thomson<br />
& Kilroy, US Bancorp NA, The Piper Jaffray Companies, Novation LLC and Neoforma,<br />
Inc. to obstruct <strong>Medical</strong> <strong>Supply</strong>’s entry into the national market for hospital supplies by<br />
12<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5814
attempting to intimidate and harass <strong>Medical</strong> <strong>Supply</strong>’s counsel and deprive the company<br />
of the means to assert its legal rights. The Hobbs Act 18 U.S.C.§1951, The Sherman<br />
Antitrust Act 15 U.S.C. §1 and Retaliating Against a Victim Witness or Informant 18<br />
U.S.C. §1513(b).<br />
S/ Bret D. Landrith<br />
S/ Sam K. Lipari<br />
13<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5815
Attorney James P. O'Hara Named U.S. Magistrate Judge<br />
James P. O'Hara, managing partner of the Shughart Thomson & Kilroy law firm's Overland Park<br />
office, has been appointed U.S. Magistrate Judge in Topeka, Kansas.<br />
O'Hara, 44, of Overland Park, will succeed Ronald C. Newman, who died in September 1999. He will<br />
be one of four U.S. Magistrate Judges in Kansas, and will have a split docket between Topeka and<br />
Kansas City, Kansas. O'Hara was selected from among 24 applicants by U.S. District Judges in<br />
Kansas with the assistance of a merit selection panel of 11 Kansas lawyers and laypersons.<br />
"I'll miss my colleagues at Shughart Thomson & Kilroy," said O'Hara. "It's been a real pleasure to be<br />
associated with such a talented and experienced team of attorneys."<br />
John M. Kilroy, Jr., managing partner of the firm, commended O'Hara.<br />
"We feel lucky to have practiced law with Jim for the last 18 years. He will be an outstanding<br />
Magistrate and we are fortunate that he is willing to make this commitment to public service."<br />
As a U.S. Magistrate Judge, O'Hara will handle pre-trial scheduling and procedures for civil cases and<br />
will preside over settlement conferences, mediation and, with consent of the litigants, disposition of<br />
civil cases. Magistrate Judges also prepare criminal cases for trial and try misdemeanor cases.<br />
O'Hara joined Shughart Thomson & Kilroy in 1982 and was named a shareholder and director in 1987.<br />
During his 18-year career as a trial attorney, he has handled primarily business litigation and complex<br />
divorce cases. He has served on the firm's executive, associates and hiring committees, and has been<br />
managing partner of its 12-lawyer Overland Park office since 1998.<br />
O'Hara earned his bachelor's degree from the University of Nebraska in 1977 and his law degree with<br />
honors from Creighton University School of Law in 1980. He served as a law clerk for two Federal<br />
Judges: the late Robert V. Denney, U.S. District Judge in Nebraska; and C Arlen Beam, formerly U.S.<br />
District Judge in Nebraska, now a U.S. Circuit Judge on the U.S. Court of Appeals for the 8th Circuit.<br />
He has served as a member of the Bench Bar Committee of the U.S. District Court in Kansas and as a<br />
member of the Kansas Board for Discipline of Attorneys, a 20-member board appointed by the Kansas<br />
Supreme Court to conduct evidentiary hearings and adjudicate disciplinary complaints.<br />
Effective immediately, O'Hara has resigned as a shareholder and director of Shughart Thomson &<br />
Kilroy, a leading Kansas City law firm. The firm announced Tuesday that Lawrence A. Swain, Chair<br />
of the Intellectual Property and Technology Group, has been named the new partner in charge of the<br />
Overland Park office.<br />
About the Firm Practice Groups Attorneys News & Events Symposium<br />
###<br />
Exb 13<br />
Atch 1<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5816
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Welcome<br />
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CONGRESSIONAL HEARINGS<br />
Hearing Before the Committee on the Judiciary Subcommittee on Antitrust, Competition Policy<br />
and Consumer Rights of the United States Senate on "Hospital Group Purchasing: How to<br />
Maintain Innovation and Cost Savings"<br />
September 14, 2004<br />
Hearing Before the Committee on the Judiciary United States Senate Subcommittee on<br />
Antitrust, Competition Policy and Consumer Rights on "Hospital Group Purchasing: Has the<br />
Market Become More Open to Competition<br />
July 16, 2003<br />
Hearing before the Senate Committee on the Judiciary Subcommittee on Antitrust, Business<br />
Rights and Competition on Hospital Group Purchasing: Lowering Costs at the Expense of<br />
Patient Health and <strong>Medical</strong> Innovations<br />
April 30, 2002<br />
LITIGATION<br />
<strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. vs. US Bancorp Piper Jaffray<br />
MSC vs. US Bancorp Piper Jaffray Amended Complaint<br />
MSC vs. US Bancorp Piper Jaffray Appeal Brief<br />
MSC vs. US Bancorp Piper Jaffray Order and Show Cause<br />
MSC vs. US Bancorp Piper Jaffray Letter to the Senate November 10 2004<br />
MSC vs. US Bancorp Piper Jaffray Show Cause Reply<br />
MSC vs. US Bancorp Piper Jaffray Letter to the Senate November 23 2004<br />
MSC vs. US Bancorp Piper Jaffray En Banc Motion<br />
MSC vs. US Bancorp Piper Jaffray En Banc Motion Attachment 1<br />
MSC vs. US Bancorp Piper Jaffray En Banc Motion Attachment 2<br />
MSC vs. US Bancorp Piper Jaffray En Banc Motion Attachment 3<br />
MSC vs. US Bancorp Piper Jaffray En Banc Motion Attachment 4<br />
MSC vs. US Bancorp Piper Jaffray Sanction Order<br />
Motion for En Banc Rehearing of Sanctions<br />
Exb. 1 Order of Sanctions Pg. 17-25<br />
Exb. 2 En Banc Motion Pg. 26-43<br />
Exb. 3 Sherman Claims Pg. 44-55<br />
Exb. 4 Letter To Chief Clerk Patrick Fisher Pg. 56-58<br />
Exb. 5 Excerpt From Motion For New Trial Pg. 59-70<br />
Exb. 6 Trial Court Order Pg. 71-86<br />
Exb. 7 USA Patriot Act Claims Pg. 87-94<br />
Exb. 8 Appelate Show Cause Order Pg. 95-97<br />
<strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. vs. General Electric Company<br />
MSC vs. General Electric Company Amended Complaint<br />
MSC vs. General Electric Company Appeal Brief<br />
MSC vs. General Electric Company Answer Brief<br />
PRESS RELEASE<br />
"<strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> Enables Interactive eBusiness Communications; A Strategy to Remove<br />
Artificially Inflated Health Care Cost" Exb 13<br />
Atch 2<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5817
Kansas City, MO. -- January 26, 2005<br />
"<strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> Targets Health Care’s Out of Control and Artificially Inflated <strong>Supply</strong> Costs With<br />
The Next Generation of e-Commerce"<br />
Kansas City, MO. -- January 11, 2005<br />
"Second US Attorney Death in Novation Medicare Fraud Case"<br />
Kansas City, MO. -- September 17 2004<br />
"General Electric Faces Ruling as Novation Medicare Co-Conspirator"<br />
Kansas City, MO. -- August 26 2004<br />
"General Electric Ordered Into Antitrust Mediation"<br />
Kansas City, MO. -- April 7 2004<br />
"Healthcare Marketplace <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. Announces Bid to Acquire US Bank’s Troubled<br />
Investment Banking Unit US Bancorp Piper Jaffray"<br />
Kansas City, MO. -- January 27 2003<br />
"Healthcare Reform Suffers A Massive Blow From Improper Use of The USA Patriot Act"<br />
Kansas City, MO. -- February 6 2003<br />
"<strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. is Raising the Standards in Healthcare E-Commerce, Defining Efficiencies<br />
for the Healthcare <strong>Supply</strong> <strong>Chain</strong>."<br />
Kansas City, MO. -- March 21 2001<br />
"<strong>Medical</strong><strong>Supply</strong><strong>Chain</strong>.com Launches Global Trade Exchange for Institutional Healthcare Enterprises"<br />
Kansas City, MO. -- May 30 2000<br />
"<strong>Medical</strong><strong>Supply</strong><strong>Chain</strong>.com Selects the<strong>Supply</strong><strong>Chain</strong>.com to Enable Independent Trading Exchange"<br />
Newport Beach, CA. -- May 25 2000<br />
PUBLICATIONS<br />
October 18 2004 "US Atorney's Office Loses 3 Go-To Guys'"<br />
By MATT STILES<br />
August 21, 2004 "Wide U.S. Inquiry Into Purchasing for Health Care"<br />
By MARY WILLIAMS WALSH<br />
September 4, 2002 "A Persistent Small Supplier Gets Contract for Hospitals"<br />
By BARRY MEIER<br />
August 15, 2002 "3 <strong>Medical</strong> <strong>Supply</strong> Companies Receive U.S. Agency Subpoenas"<br />
By MARY WILLIAMS WALSH<br />
August 9, 2002 "Buying Group for Hospitals Vows Change"<br />
By BARRY MEIER with MARY WILLIAMS WALSH<br />
August 6, 2002 "Buying Group for Hospitals Changes Ways"<br />
By BARRY MEIER and MARY WILLIAMS WALSH<br />
August 4, 2002 "Hospitals Strut in a Lurching Market"<br />
By REED ABELSON<br />
August 1, 2002 "Accusation of Conflicts at a Supplier to Hospitals"<br />
By MARY WILLIAMS WALSH<br />
July 24, 2002 "Audits Scrutinized at Operator of Hospital-Supplies Web Site"<br />
By MARY WILLIAMS WALSH<br />
July 19, 2002 "Questioning $1 Million Fee in a Needle Deal"<br />
By BARRY MEIER with MARY WILLIAMS WALSH<br />
June 7, 2002 "A Mission to Save Money, a Record of Otherwise"<br />
By MARY WILLIAMS WALSH<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5818
May 1, 2002 "Senate Panel Criticizes Hospital Buying Groups"<br />
By BARRY MEIER and MARY WILLIAMS WALSH<br />
April 30, 2002 "Hospitals Sometimes Lose Money by Using a <strong>Supply</strong> Buying Group"<br />
By MARY WILLIAMS WALSH and BARRY MEIER<br />
April 27, 2002 "Hospital Group's Link to Company Is Criticized"<br />
By MARY WILLIAMS WALSH<br />
April 23, 2002 "Hospital Products Get Seal of Approval at a Price"<br />
By BARRY MEIER<br />
March 26, 2002 "When a Buyer for Hospitals Has a Stake in Drugs It Buys"<br />
By MARY WILLIAMS WALSH<br />
March 4, 2002 "Medicine's Middlemen; 2 Powerful Groups Hold Sway Over Buying at Many Hospitals"<br />
By WALT BOGLANICH<br />
REPORTS<br />
United States General Accounting Office Tuesday April 30, 2002 Testimony Before the Subcommittee<br />
on Antitrust, Competition, and Business and consumer Rights, Committee on the judiciary, U.S.<br />
Senate<br />
GAO GPO Report<br />
Blue Print For An Efficient <strong>Supply</strong> <strong>Chain</strong> Wednesday January 10, 2001<br />
Lynn James Everard, C.P.M., C.B.M Healthcare <strong>Supply</strong> <strong>Chain</strong> Strategist<br />
Blueprint for an Efficient Health Care <strong>Supply</strong> <strong>Chain</strong><br />
The Exclusion of Competition For Hospital Sales Through Group Purchasing Organization Tuesday<br />
June 25, 2002 Harvard Law Professor Einer Elhauge<br />
Harvard Law Study<br />
MEDICAL NEWS<br />
Orange Juice Can Help Promote Health...<br />
-- Ad - http://www.floridajuice.com, Sat Jan 29 2005 00:<strong>08</strong>:00 GMT-0600<br />
Vietnam's 11th Bird-Flu Death Under Probe for Possible Human Transmission...<br />
-- Bloomberg, Sat Jan 29 2005 00:<strong>08</strong>:00 GMT-0600<br />
A 13-year-old girl becomes 11th bird flu death in Vietnam in a month (updated PM 02:03)...<br />
-- China Post, Fri Jan 28 2005 23:59:00 GMT-0600<br />
1 more bird flu patient in Vietnam dies, Cambodian suspected¡¡...<br />
-- China Economic Net, Fri Jan 28 2005 23:57:00 GMT-0600<br />
One more bird flu patient dies in Vietnam...<br />
-- Peoples Daily Online, Fri Jan 28 2005 23:56:00 GMT-0600<br />
ASCO-GI: Advanced Pancreatic Cancer Patients Respond to FOLFOX-6 Regimen...<br />
-- Doctors Guide, Fri Jan 28 2005 23:42:00 GMT-0600<br />
Study Confirms ICDs More Effective In Preventing Sudden Cardiac Death Than <strong>Medical</strong> Therapies...<br />
-- Science Daily, Fri Jan 28 2005 23:30:00 GMT-0600<br />
NIAID Begins Enrolling Volunteers For Novel HIV Vaccine Study...<br />
-- Science Daily, Fri Jan 28 2005 23:30:00 GMT-0600<br />
Copyright © 2000-2005 <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. All rights reserved.<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5819
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5820
Locations Publications Recruiting Archives Home<br />
Contact us by email at solutions@stklaw.com.<br />
©Shughart Thomson & Kilroy. All rights reserved.<br />
Click here to read our Disclaimer.<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5821
Exb 13<br />
Atch 3<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5822
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5823
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5824
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5825
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5826
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5827
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5828
IN THE UNITED STATES MAGISTRATE COURT<br />
FOR THE DISTRICT OF KANSAS<br />
2 TOPEKA, KANSAS<br />
3<br />
4 JAMES L. BOLDEN, )<br />
24 sloppy way.<br />
25 I'm not sure, Mr. Bolden, that you'd<br />
been<br />
NORA LYON & ASSOCIATES, INC.<br />
-------------------- Plaintiff, )<br />
5 )<br />
vs.<br />
) Case No.<br />
6 ) 02-CV-2635<br />
CITY OF TOPEKA, et al., )<br />
7 -------------------- Defendant. )<br />
8<br />
9 TRANSCRIPT OF TAPE-RECORDED<br />
FINAL PRETRIAL CONFERENCE<br />
10 BEFORE<br />
HONORABLE JAMES P. O'HARA<br />
11 on<br />
November 20, 2003<br />
12<br />
13<br />
APPEARANCES:<br />
14<br />
For the Plaintiff: Mr. Bret D. Landrith<br />
15 Attorney at Law<br />
12820 SW Highway 4<br />
16 Topeka, Kansas 66610<br />
17 For the Defendant: Ms. Sherri L. Price<br />
City of Topeka<br />
18 Legal Department<br />
215 Southeast 7th<br />
19 Topeka, Kansas 66603<br />
20 Court Reporter: Jana L. Willard, CSR,<br />
RPR<br />
Nora Lyon & Associates<br />
21 1515 South Topeka Avenue<br />
Topeka, Kansas 66612<br />
But, Mr.<br />
14 Bolden, you ought to be aware of the fact that<br />
15 if these six defendants are ultimately<br />
16 dismissed from the case by Judge Vratil that<br />
17 you would have certain remedies that you<br />
might<br />
66612<br />
2720<br />
1515 S.W. Topeka Blvd., Topeka, KS<br />
Phone: (785) 232-2545 FAX: (785) 232-<br />
41<br />
1 doing any worse if you were to represent<br />
2 yourself. And I have a lot of folks in civil<br />
3 rights case that do represent themselves. But<br />
4 this case, in this Court and based on what is<br />
5 of public record in the Kansas Court of<br />
6 Appeals, is disturbing to say the least.<br />
you<br />
18 want to discuss with another lawyer that<br />
19 could exercise against Mr. Landrith, who's<br />
20 charged with responsibly and<br />
professionally<br />
21 representing you in this case. And I-- I don't<br />
22 mean to be uncharitable to either of you, but<br />
23 this case has been handled in an<br />
exceptionally<br />
ATTACHMENT 8<br />
Exb 13<br />
Atch 4<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5829
19 In contrast, as a practical matter, it appears that plaintiff probably would suffer little,<br />
if any, prejudice if the individual defendants were dismissed.<br />
Fn 19, Magistrate O’Hara’s Report and Recommendation pg. 10<br />
Stated more directly, the court is deeply troubled by Mr. Landrith’s apparent<br />
incompetence. The pleadings he has filed (see, e.g., docs. 1, 13, 23, 35, 37, & 42), and<br />
his non-responsive, rambling, ill-informed legal arguments during the pretrial conference,<br />
suggest that he is not conversant with even the most basic aspects of the Federal Rules of<br />
Civil Procedure. The court doubts that Mr. Landrith has any better grasp of the<br />
substantive law that applies to this case. Based on what transpired at the pretrial<br />
conference, plaintiff appears more articulate than Mr. Landrith. Plaintiff may be better<br />
served by representing himself without any attorney if indeed Mr. Landrith is the only<br />
attorney willing to take the case.<br />
Magistrate O’Hara’s Report and Recommendation pg. 12<br />
The Clerk’s Office shall serve copies of this report and recommendation on all counsel of<br />
record, and shall also send a copy via certified mail, return receipt requested, to the<br />
plaintiff, Mr. James L. Bolden, at 4218 S.E. Ridgeview Terrace, Topeka, Kansas 66609.<br />
Magistrate O’Hara’s Report and Recommendation pg. 13<br />
Exb 13<br />
Atch 5<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5830
Exb 13<br />
Atch 6<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5831
02-3443 <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> v. US Bancorp, NA., et al<br />
1/6/03 [1577139] Appellant's corrected brief filed by <strong>Medical</strong><br />
<strong>Supply</strong> <strong>Chain</strong>. Original and 7 copies. c/s: y. Served on<br />
1/6/03. Oral argument n. Appendix filed. Original and 2<br />
appendix copies. Appellee's brief due 2/10/03 for Unknown<br />
Healthcare, for Brian Kabbes, for Lars Anderson, for Susan<br />
Paine, for Andrew Cesere, for Piper Jaffray, for Mutual<br />
Fund Services, for Institutional Trust, for Corporate<br />
Trust, for US Bank Private and for US Bancorp, NA. (kf)<br />
[02-3443]<br />
1/8/03 [1576827] Appellant's motion for preliminary injunction<br />
pending appeal submitted to court. (mt) [02-3443]<br />
1/9/03 [1577188] Order filed by Judges Seymour & O'Brien denying<br />
appellant's motion for preliminary injunction pending<br />
appeal. Parties served by mail. (mt) [02-3443]<br />
Docket as of April 27, 2004 11:02 am Page 5<br />
Proceedings include all events.<br />
02-3443 <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> v. US Bancorp, NA., et al<br />
1/10/03 [1577795] Notice of appearance filed by Mark A. Olthoff<br />
and Andrew M. DeMarea as attorney for defendants US<br />
Bancorp, NA., US Bank Private, Corporate Trust,<br />
Institutional Trust, Mutual Fund Services, Piper Jaffray,<br />
Andrew Cesere, Susan Paine, Lars Anderson, Brian Kabbes,<br />
except "Unknown Healthcare Supplier". CERT. OF INTERESTED<br />
PARTIES (y/n): y. (mt) [02-3443]<br />
1/10/03 [1577801] Appellees' Rule 26.1 Disclosure Statement<br />
(Corporate Disclosure Statement) filed by all defendants<br />
other than "Unknown Healthcare Supplier". Original and 3<br />
copies. c/s: y. (mt) [02-3443]<br />
1/13/03 [1578207] Appellees' response filed by US Bancorp, NA., et<br />
al., to Appellant's motion for preliminary injunction<br />
pending appeal. Original and 3 copies. c/s: y (kjs)<br />
[02-3443]<br />
1/21/03 [1580331] Filed notice record is complete 1/10/03. (mt)<br />
[02-3443]<br />
2/12/03 [1587114] Appellee's motion to extend time to file<br />
appellee's brief until 3/12/03 filed by US Bancorp, NA., US<br />
Bank Private, Corporate Trust, Institutional Trust, Mutual<br />
Fund Services, Piper Jaffray, Andrew Cesere, Susan Paine,<br />
Lars Anderson, Brian Kabbes. Original and 3 copies. c/s:<br />
y (kjs) [02-3443]<br />
2/13/03 [1587526] Order filed by PF granting Appellees motion to<br />
extend time to file eres brief until [1587114-1] 3/12/03<br />
for Brian Kabbes, et al. No further extensions. Parties<br />
served by mail. (kjs) [02-3443]<br />
3/13/03 [1595409] Appellee's brief filed by US Bancorp, NA., et<br />
al.. Original and 7 copies. c/s: y. Served on 3/12/03.<br />
Oral Argument n, Appendix filed. Original and 1 appendix<br />
copy. Appendix Pages: 44. Appellant's optional reply brief<br />
due 3/31/03 for <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>. (sl) [02-3443]<br />
3/31/03 [1599620] Appellant's reply brief filed by <strong>Medical</strong> <strong>Supply</strong><br />
<strong>Chain</strong>. Original and 7 copies. c/s: y (kjs)<br />
ATTACHMENT 7<br />
Exb 13<br />
Atch 7<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5832
Exb 13<br />
Atch 8<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5833
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5834
Exb 9<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5835
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5836
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5837
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5838
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5839
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5840
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5841
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5842
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<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5844
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<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5846
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5847
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<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5849
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5850
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5851
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5852
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5853
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5854
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5855
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5856
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5857
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5858
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5859
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5860
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5861
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5862
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5863
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5864
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5865
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5866
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5867
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5868
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5869
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5870
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5871
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5872
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5873
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5874
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5875
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5876
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5877
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5878
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5879
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5880
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5881
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5882
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<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5884
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5885
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5886
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5887
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<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5889
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5890
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5891
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5892
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<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5894
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5895
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5896
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<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5903
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<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5905
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5906
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5907
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<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5909
IN THE UNITED STATES DISTRICT COURT<br />
FOR THE DISTRICT OF KANSAS<br />
MEDICAL SUPPLY CHAIN, INC., )<br />
)<br />
Plaintiff, )<br />
)<br />
v. ) Case No. 03-2324-CM<br />
)<br />
GENERAL ELECTRIC COMPANY, et al., )<br />
)<br />
Defendants. )<br />
ORDER<br />
This case comes before the court on defendants’ motion to stay all proceedings<br />
pending resolution of their separate motion to dismiss (doc. 15). Plaintiff opposes<br />
defendants’ motion to stay. After reviewing the defendants’ motion and plaintiff’s response<br />
(doc. 19), the court is prepared to rule. Defendants’ reply is not yet due. However, it is clear<br />
to the court that the instant motion should be granted. Therefore, the court will address the<br />
motion without awaiting further briefing.<br />
The court may stay discovery if: (1) the case is likely to be finally concluded via the<br />
dispositive motion; (2) the facts sought through discovery would not affect the resolution of<br />
the dispositive motion; or (3) discovery on all issues posed by the complaint would be<br />
wasteful and burdensome. 1 The decision whether to stay discovery rests in the sound<br />
1<br />
Wolf v. United States, 157 F.R.D. 494, 495 (D. Kan. 1994) (citing Kutilek v.<br />
Gannon, 132 F.R.D. 296, 297-98 (D. Kan. 1990)).<br />
O:\ORDERS\03-2324-CM-15.wpd<br />
Exb 9A<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5910
discretion of court. As a practical matter, this calls for a case-by-case determination. Upon<br />
reviewing the record in this case, the court concludes that a stay of all proceedings is<br />
warranted. Defendants’ motion to dismiss is based on the facts as plead in plaintiff’s<br />
complaint, so the facts sought through discovery will not affect the resolution of that motion.<br />
In the event U.S. District Judge Carlos Murguia grants the motion to dismiss, the discovery<br />
sought would be wasteful and burdensome. Most notably, while not presuming to predict<br />
whether Judge Murguia will grant the motion to dismiss, it appears from the undersigned<br />
magistrate judge’s review of the briefs filed in connection with motion to dismiss that<br />
defendants may very well prevail.<br />
In opposition to defendants’ motion, plaintiff oddly cites the incorrect standard for<br />
the court’s decision to stay discovery, and then proceeds to make an argument that makes<br />
little sense to the court. In any event, it is clear to the court that a stay is appropriate in this<br />
case.<br />
In consideration of the foregoing,<br />
IT IS HEREBY ORDERED:<br />
1. Defendants’ motion to stay all discovery and other pretrial proceedings<br />
pending resolution of their separate motion to dismiss (doc. 15) is granted.<br />
2. A copy of this order shall be served upon all counsel of record and all<br />
unrepresented parties. The scheduling conference that was set for October 31,<br />
2003 is cancelled.<br />
O:\ORDERS\03-2324-CM-15.wpd<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5911
Dated this 24th day of October, 2003, at Kansas City, Kansas.<br />
s/ James P. O’Hara<br />
James P. O’Hara<br />
U.S. Magistrate Judge<br />
O:\ORDERS\03-2324-CM-15.wpd<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5912
Exb 9B<br />
CASE NO.: 2:03-cv-2324<br />
____________________________________________<br />
MEDICAL SUPPLY CHAIN, INC.,<br />
Plaintiff,<br />
vs.<br />
JEFFREY R. IMMELT<br />
GENERAL ELECTRIC COMPANY<br />
GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION<br />
GE TRANSPORTATION SYSTEMS GLOBAL SIGNALING, L.L.C.<br />
Defendants.<br />
____________________________________________<br />
PLAINTIFF’S REPLY TO MOTION FOR STAY OF DISCOVERY<br />
The defendants seek a stay of the implementation of the federal civil procedure statutes regarding discovery. The<br />
standards for a stay are (a) the likelihood of success on appeal; (b) the threat of irreparable harm if the stay is<br />
not granted; (c) the absence of harm to opposing parties; and (d) the risk of harm to the public interest. See,<br />
e.g., Spain v. Podrebarac, 68 F.3d 1246, 1247 (10th Cir. 1995).<br />
1. The defendants will not suffer irreparable injury if the stay is not granted and have made no argument or<br />
showing that they will. The GE defendants had the opportunity to avoid antitrust discovery when the<br />
consequences of their actions in the present circumstances were explained to them and they chose under the<br />
advice of their present counsel to commit a felony per se refusal to deal and injure <strong>Medical</strong> <strong>Supply</strong> and the<br />
market for hospital supplies in conduct the U. S. Supreme Court has repeatedly found cannot be excused by<br />
business motive and to which there is no defense.<br />
2. The public interest in respecting affordable access to healthcare weighs against a stay of discovery. See, e.g.,<br />
Frisby v. Schultz, 487 U.S. 474, 484 (1988); Rowan v. United States Post Office Dept, 397 U.S. 728, 737<br />
(1970). Second, the census data showing the previous year saw a more than 2 million person increase in the<br />
number of Americans without healthcare insurance due to the weakened economy and the inability of employers<br />
and insurance companies to absorb the inflationary cost increases of healthcare endangers more than 43 million<br />
Americans. The latest data presented in this action indicates 18,000 Americans die each year because of their<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5913
lack of health insurance and the consequential loss of access to adequate healthcare. This data does not include<br />
the under insured Americans who because of healthcare’s inflated or non efficient costs have had their health<br />
insurance reduced to catastrophic coverage without funding for regular preventative care. The <strong>Medical</strong> <strong>Supply</strong><br />
counsel’s own brother in law is representative of an additional cohort of victims that may be many times<br />
18,000. A noted Wichita sculptor, Bart Ewonus died in these circumstances in December 2002 at age 43 after<br />
this court denied <strong>Medical</strong> <strong>Supply</strong>’s relief against GE’s coconspirators as a result of failing to go to the<br />
emergency room when he thought he could recover on his own from the flu. When he did go to the doctor’s<br />
office during regular hours, it was found he had severe pneumonia. Although he was immediately hospitalized,<br />
it was two late. The public has an expectation interest that the federal antitrust laws will be enforced including<br />
those that shift the burden of discovery onto the defendants.<br />
3. There is no likelihood of success on the merits of their motion for dismissal, (which must be now converted<br />
to a motion for summary judgment necessitating discovery). They have by mistake or deception, failed to<br />
address the plaintiff’s charge that the GE Defendants have acted in combination and in conspiracy with<br />
Neoforma, Inc., a company that is not a subsidiary of GE. The goal of that conspiracy was to deprive <strong>Medical</strong><br />
<strong>Supply</strong> of the capital to enter the healthcare market, an integrel part of the antitrust violation antitrust injury<br />
recognized in the Tenth Circuit case Reazin v. Blue Cross And Blue Shield of Kansas, 663 F. Supp. 1360 at<br />
1414 (D. Kan. 1987).<br />
4. <strong>Medical</strong> <strong>Supply</strong> and the American healthcare market has been injured, though under a per se to deal, no<br />
injury need be shown. The defendants’ heightened standard of pleading for contracts is incorrect for Missouri<br />
and Kansas where, even under fact based pleading, both states apply liberal rules to what the court must infer or<br />
examine in the entire contents of a pleading before dismissing a claim prior to discovery. The defendants’<br />
theory, that a condition precedent is inadequately pled is itself wrong on its face under Missouri contract law.<br />
The recognition of a condition precedent imposes an enforceable contract with duties for both parties.<br />
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Repudiation and the defendants’ failure to verify whether they were observing the contract excuse <strong>Medical</strong><br />
<strong>Supply</strong> of any duty. See plaintiff’s reply to motion to dismiss.<br />
5. <strong>Medical</strong> <strong>Supply</strong> under antitrust and contract law is clearly entitled to its expectations under Missouri and<br />
Kansas law in its deal with the GE defendants, where they had knowledge of those expectations before<br />
committing an antitrust violation against <strong>Medical</strong> <strong>Supply</strong> or breaching the contract to purchase the lease from<br />
<strong>Medical</strong> <strong>Supply</strong>. The GE conspirators have committed a separate and distinct predicate act from the previous<br />
acts committed by US Bancorp/Neoforma. Depending on the length of this action and whether <strong>Medical</strong><br />
<strong>Supply</strong>’s market opportunity still exists at the conclusion, that injury is 4 to 6 million dollars a day. Both the<br />
defendants (notwithstanding the advice of their otherwise capable counsel) and <strong>Medical</strong> <strong>Supply</strong> are injured by<br />
any delay in the prosecution of this matter.<br />
Whereas, the injury suffered by <strong>Medical</strong> <strong>Supply</strong> and the American market for healthcare supplies and the related<br />
market for healthcare services in which costs are dependent on supplies is immense, and increases exponentially<br />
as <strong>Medical</strong> <strong>Supply</strong> is denied relief, the plaintiff respectfully requests the court deny the defendants motion for<br />
stay of discovery.<br />
Respectfully Submitted<br />
S/-----------<br />
Bret D. Landrith, Esq<br />
Supreme Court No. 20380<br />
12820 SW Hwy 4<br />
Topeka, KS 66614<br />
Cell 816-365-1306<br />
CERTIFICATE OF SERVICE<br />
I certify that on October 10th, 2003, emailed this document to the defense counsel named below:<br />
Jonathan L. Glecken<br />
Ryan Z. Watts<br />
Arnold & Porter<br />
555 Twelfth Street, N.W.<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5915
Washington, DC 20004-1206<br />
John K. Power<br />
Husch & Eppenberger, LLC.<br />
1200 Main Street<br />
Suite 1700<br />
Kansas City, MO 64105<br />
Counsel for:<br />
JEFFREY R. IMMELT<br />
GENERAL ELECTRIC COMPANY<br />
GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION<br />
GE TRANSPORTATION SYSTEMS GLOBAL SIGNALING, L.L.C.<br />
S/-----------<br />
Bret D. Landrith, Esq<br />
Supreme Court No. 20380<br />
12820 SW Hwy 4<br />
Topeka, KS 66614<br />
Cell 816-365-1306<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5916
Bolden v. Topeka City of, et al<br />
Assigned to: Judge Kathryn H. Vratil<br />
Demand: $0<br />
Case in other court:<br />
10CCA, 04-03306<br />
Cause: 42:1983 Civil Rights Act<br />
Date Filed: 12/20/2002<br />
U.S. District Court<br />
District of Kansas (Kansas City)<br />
CIVIL DOCKET FOR CASE #: 2:02-cv-02635-KHV<br />
10/25/2004<br />
122<br />
TRANSCRIPT ORDER FORM by Court Reporter Theresa Hallberg ordering transcripts of 6/10/04, 11/24/03, 7/9/04 re 118 Notice<br />
of Appeal - Final Judgment filed by James L Bolden ( Appeal No. 04-3306) Transcript due by 12/14/2004. (trs) (Entered:<br />
10/25/2004)<br />
11/23/2004<br />
123<br />
TRANSCRIPT ORDER FORM by Court Reporter Nora Lyon ordering transcripts of Pretrial Conference re 118 Notice of Appeal -<br />
Final Judgment filed by James L Bolden ( Appeal No. 04-3306) Transcript due by 12/15/2004. (km) (Entered: 11/30/2004)<br />
12/10/2004<br />
124<br />
TRANSCRIPT of proceedings held 11-20-03 before Judge James P. O'Hara,Transcript of Tape-Recorded Final Pretrial<br />
Conference, 68 pgs., Court Reporter: Jana L. Willard.<br />
(Nora Lyon & Associates, ) (Entered: 12/10/2004)<br />
12/14/2004<br />
125<br />
Letter to Court of Appeals from Court Reporter, Nora Lyon, stating that all transcripts ordered in this case have been filed with the<br />
Clerk of the District Court as of 12/8/04. (km) (Entered: 12/17/2004)<br />
12/17/2004<br />
126<br />
LETTER TO 10CCA stating record is complete re 118 Notice of Appeal - Final Judgment ( Appeal No. 04-3306) (km, ) (Entered:<br />
12/19/2004)<br />
01/14/2005<br />
127<br />
MOTION to Amend/Correct Record on Appeal Status by Plaintiff James L Bolden(Landrith, Bret) (Entered: 01/14/2005)<br />
01/20/2005<br />
128<br />
NOTICE of Appeal Brief Extension by James L Bolden (Attachments: # 1 Exhibit Motion for Extension# 2 Supplement<br />
Attached Motion to Correct)(Landrith, Bret) (Entered: 01/20/2005)<br />
01/24/2005<br />
129<br />
TRANSCRIPT of proceedings held 6-10-04 before Judge khv, Court Reporter: teh.<br />
(Hallberg, Teri) (Entered: 01/24/2005)<br />
01/24/2005<br />
130<br />
TRANSCRIPT of proceedings held 7-9-04 before Judge khv, Court Reporter: teh.<br />
(Hallberg, Teri) (Entered: 01/24/2005)<br />
01/27/2005<br />
131<br />
Letter to 10CCA stating the record is not complete. A new letter notifying the Court of Appeals will be transmitted when all<br />
requested transcripts have been filed. re 118 Notice of Appeal - Final Judgment (Appeal No. 04-3306) (km) (Entered:<br />
01/27/2005)<br />
ATTACHMENT 10<br />
Exb 13<br />
Atch 10<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5917
United States Court of Appeals for the 10th Circuit<br />
Case Summary<br />
Court of Appeals Docket #: 04-3306 Filed: 8/18/04<br />
Nsuit: 3440<br />
Bolden v. City of Topeka<br />
Appeal from: United States District Court for the District of Kansas<br />
9/23/04 [1742810] Fee paid. Date paid in District Court on 9/1/04.<br />
(mt)<br />
9/24/04 [1743271] Case referred for mediation conferencing. (sl)<br />
9/28/04 [1743929] Order filed by PF - Transcript order form due<br />
10/13/04 for attorney for Bolden. Parties served by mail.<br />
(kf)<br />
9/30/04 [1745690] Appellant's motion filed by Appellant James L.<br />
Bolden to extend time to file appellant's brief until<br />
12/5/04. Original and 3 copies. c/s: y. (mt)<br />
10/5/04 [1745967] Order filed by PF (eas) denying appellant's<br />
motion to extend time to file appellant's brief as<br />
unnecessary. - Transcript order form is due 10/13/04 for<br />
Theresa E. Hallberg pursuant to Rule 42. The briefing<br />
schedule will commence when the district court issues a<br />
notice that the record is complete. 10th Cir.R. 31.1(A)(1).<br />
To the extent ongoing state court proceedings will impact<br />
counsel's representation in this matter, he shall keep this<br />
court fully apprised of those proceedings. Parties served<br />
by mail. (mt)<br />
10/12/04 [1747837] Acknowledgement of transcript order filed by<br />
James L. Bolden. Transcript order due 10/22/04 for Theresa<br />
E. Hallberg. (sl)<br />
10/27/04 [1752410] Transcript order form filed by Theresa E.<br />
Hallberg and Bret D. Landrith. Transcript due 12/14/04 for<br />
Theresa E. Hallberg. (Trial proceedings 6/10/04, 11/24/03,<br />
7/9/04, and motion hearing only 7/9/04) (mt)<br />
11/1/04 [1754014] Acknowledgement of transcript order filed by<br />
James L. Bolden. Transcript order due 11/12/04 for Nora<br />
Lyon. (Pre trial conference) (mt)<br />
11/15/04 [1756693] Case mediation conferencing terminated. (sl)<br />
11/22/04 [1758914] Transcript order form filed by Nora Lyon and Bret<br />
D. Landrith. Transcript of pretrial conference held 11/20/03<br />
due 12/15/04 for Nora Lyon. (mt)<br />
12/13/04 [1764637] Notice filed that the transcript was filed by<br />
Nora Lyon in district court on 12/8/04. (kjs)<br />
12/27/04 [1768263] Filed notice record is complete 12/17/04.<br />
Appellant's brief and appendix due 1/26/05 for James L.<br />
Bolden. (kjs)<br />
1/24/05 [1776865] Appellant's motion filed by James L. Bolden to<br />
restart the briefing schedule 40 days from date of amended<br />
notice from district court or to extend time 20 days from<br />
January 26, 2005, until 2/15/05 [04-3306]. Original and 3<br />
copies. c/s: y (mt)<br />
PACER ATTACHMENT 11<br />
Exb 13<br />
Atch 11<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5918
From: eposone@mobil1.net<br />
Subject: Bolden v. City of Topeka, et al Case No. 04-3306<br />
Date: January 26, 2005 10:34:35 PM CST<br />
To:<br />
esubmission@ca10.uscourts.gov<br />
Cc:<br />
SPrice@Topeka.org<br />
1 Attachment, 388 KB<br />
January 26th, 2005<br />
TO: Clerk of the Tenth Circuit Court<br />
Byron White U.S. Courthouse<br />
1823 Stout Street<br />
Denver, CO 80257.<br />
RE: Bolden v. City of Topeka, et al Case No. 04-3306, Kan. Dist. Ct. Case 02-02635<br />
Dear Clerk of the Tenth Circuit Court,<br />
Your office has received my January 20th, 2005 motion requesting an extension of time in which to file the opening brief. This<br />
Tenth Circuit motion is also entered in the District Court appearance docket of the Bolden case on January 20th, 2005.<br />
On January 25th, after several weeks of inquiries, I was informed by the district court clerk that handles appeals that the erroneous<br />
notice the record on appeal was complete sent to you previously was being corrected and that the letter was being prepared for<br />
you.<br />
Today, however I observe that neither the entry of the correction appears yet on the district court docket and my motion requesting<br />
an extension of time does not appear on your appearance docket.<br />
I am filing a brief today for James Bolden via US Mail delivery service and via email in pdf format. I am mailing you today via US<br />
Mail delivery service two copies of the appendix which is the complete and final appendix for the brief, it is unfortunately larger<br />
than your email file size limit.<br />
If the record on appeal correction or the motion for extension gives more time for Bolden to file an appellant brief, please disregard<br />
today’s brief, but retain the appendix and I will serve on you and opposing counsel the final version of the opening brief by its new<br />
due date.<br />
Respectfully Submitted<br />
S/Bret D. Landrith<br />
___________________<br />
Bret D. Landrith<br />
Kansas Supreme Court ID # 20380<br />
# G33,<br />
2961 SW Central Park,<br />
Topeka, KS 66611<br />
1-785-267-4<strong>08</strong>4<br />
landrithlaw@cox.net<br />
Certificate of Service<br />
I certify I have sent a copy of this cover letter and the appendix via U.S. Mail delivery service to opposing counsel for the<br />
City of Topeka on January 26th, 2005:<br />
Sprice@topeka. org<br />
Sherri Price<br />
City of Topeka<br />
215 E. 7th<br />
Topeka, KS 66603<br />
S/Bret D. Landrith<br />
___________________<br />
Bret D. Landrith<br />
Kansas Supreme Court Number 20380<br />
ATTACHMENT 12<br />
Exb 13<br />
Atch 12<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5919
“Defendant's second allegation is that an attorney for the defendants in the Bolden case,<br />
Sherri Price, filed an ethics complaint against the plaintiff's attorney, Bret<br />
Landrith, and that Ms. Price filed the complaint at the direction of the undersigned<br />
magistrate judge. While the undersigned did comment on the record that there<br />
were serious doubts about Mr. Landrith's competency to practice law, the<br />
undersigned did not direct anyone to file an ethics complaint. Even if that were the case,<br />
however, the ethics complaint filed by Ms. Price deals with the behavior of Mr. Landrith<br />
in his practice of law in that matter, and has no bearing on the instant case.” [ emphasis<br />
added]<br />
Magistrate Judge James P. O’Hara’s July 29, 2004 order at page 3 denying pro se<br />
plaintiff Melvin Johnson’s motion seeking recusal in the pro se plaintiff Melvin Johnson<br />
v.Topeka Housing Authority, Kansas District Court Case No. 04-4062-SAC.<br />
ATTACHMENT 13<br />
Exb 13<br />
Atch 13<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5920
UNITED STATES DISTRICT COURT<br />
FOR THE DISTRICT OF KANSAS<br />
KANSAS CITY, KANSAS<br />
MEDICAL SUPPLY CHAIN, INC., )<br />
(Party in interest Samuel K. Lipari) )<br />
Plaintiff, )<br />
v. ) Case No. 05-2299<br />
NEOFORMA, INC. et al<br />
) Formerly W.D. MO.<br />
) Case No. 05-0210<br />
MOTION FOR RECONSIDERATION<br />
Comes now, the plaintiff <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Samuel<br />
K. Lipari appearing pro se and respectfully requests the<br />
court reconsider it dismissal order, (Doc. 78 ). The order<br />
in clear error contradicts controlling US Supreme Court<br />
authority.<br />
STATEMENT OF FACTS<br />
1. The federally actionable conduct complained of in<br />
the current case occurred after the date federally<br />
actionable conduct was averred in <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>,<br />
Inc. v. US Bancorp, NA, et al, case number 02-2539-CM<br />
(“<strong>Medical</strong> <strong>Supply</strong> I”)<br />
2. The merger of the two remaining web based hospital<br />
supply distributor competitors of <strong>Medical</strong> <strong>Supply</strong> averred in<br />
the current complaint as an agreement made by the<br />
defendants to monopolize the hospital supply market did not<br />
take place until March of 2006, a year after the current<br />
complaint.<br />
1<br />
Exb 14<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5921
3. The defendants were not parties in <strong>Medical</strong> <strong>Supply</strong><br />
<strong>Chain</strong>, Inc. v. General Electric Company, et al., case<br />
number 03-2324-CM (“<strong>Medical</strong> <strong>Supply</strong> II”).<br />
MEMORANDUM OF LAW<br />
A court will alter or amend judgment or reconsider its<br />
ruling when there is a need to correct clear error or<br />
prevent manifest injustice. Brumark Corp. v. Samson Res.<br />
Corp., 57 F.3d 941, 948 (10th Cir. 1995); Priddy v.<br />
Massanari, 2001 WL 1155268, at *2 (D. Kan. Sept. 28, 2001).<br />
1. The prior case outcomes cannot determine the present<br />
action<br />
The defendants Novation, LLC (“Novation”), VHA Inc.<br />
(“VHA”), University Healthsystem Consortium (“UHC”), Robert<br />
Baker, Curt Nonomaque, Neoforma and Robert J. Zollars were<br />
not defendants or plaintiffs in either of the preceding<br />
cases. The defendant Shughart Thomson & Kilroy, P.C.while<br />
in recognizable privity as counsel to defendants in <strong>Medical</strong><br />
<strong>Supply</strong> I, 1<br />
were not parties in <strong>Medical</strong> <strong>Supply</strong> II and the<br />
conduct averred in the present complaint did not take place<br />
1<br />
B-S Steel of Kansas, Inc. v. Texas Industries, 327<br />
F.Supp.2d 1252 (D. Kan., 2004) “But, privity does not<br />
require the plaintiff and defendant to be parties to an<br />
agreement. "Privity requires, at a minimum, a substantial<br />
identity between the issues in controversy and showing<br />
[that] the parties in the two actions are really and<br />
substantially in interest the same." Quoting Lowell Staats<br />
Mining Co. v. Philadelphia Elect. Co., 878 F.2d 1271, 1275<br />
(10th Cir.1989).<br />
2<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5922
until after the filing of the plaintiff’s averments in<br />
<strong>Medical</strong> <strong>Supply</strong> I.<br />
The Supreme Court case of Lawlor v. National Screen<br />
Service Corp., 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122<br />
(1955), is controlling. In Lawlor, the plaintiffs brought<br />
an antitrust action in 1942 alleging that the defendants,<br />
National Screen and three producers, had conspired to<br />
establish a monopoly in the distribution of advertising<br />
posters to motion picture exhibitors through the use of<br />
exclusive licenses, and that the plaintiffs' business had<br />
been injured as a result. In 1943, prior to trial, that<br />
suit was settled and dismissed with prejudice. Id. at 324,<br />
75 S.Ct. at 866. The settlement was based upon an agreement<br />
by National Screen to furnish plaintiffs with all standard<br />
accessories distributed by National Screen pursuant to its<br />
exclusive license agreements. In 1949, the plaintiffs<br />
brought another antitrust action, this time alleging that<br />
the prior settlement was merely a device used by the<br />
defendants to perpetuate their conspiracy and monopoly.<br />
Plaintiffs also alleged that five other producers had<br />
joined the conspiracy since the 1943 dismissal, that<br />
defendant National Screen had deliberately made slow and<br />
erratic deliveries of advertising materials in an effort to<br />
destroy plaintiffs' business, and that defendant had used<br />
3<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5923
tie-in sales and other means of exploiting its monopoly<br />
power. Id. at 325, 75 S.Ct. at 867. The Supreme Court held<br />
that the latter suit was not barred by res judicata because<br />
the two suits were not based on the same cause of action.<br />
Id. at 327, 75 S.Ct. at 868. The Court noted:<br />
“That both suits involved "essentially the same course<br />
of wrongful conduct" is not decisive. Such a course of<br />
conduct--for example, an abatable nuisance--may<br />
frequently give rise to more than a single cause of<br />
action.... While the 1943 judgment precludes recovery<br />
on claims arising prior to its entry, it cannot be<br />
given the effect of extinguishing claims which did not<br />
even then exist and which could not possibly have been<br />
sued upon in the previous case.”<br />
Id. at 327-28, 75 S.Ct. at 868 (footnote omitted).<br />
See also Cellar Door Productions, Inc. of Michigan v. Kay,<br />
897 F.2d 1375 at 1376-77 (C.A.6 (Mich.), 1990).<br />
The Seventh Circuit has also followed Lawlor insofar<br />
as it held that "[i]n the context of a continuing scheme to<br />
violate the antitrust laws, a cause of action accrues to<br />
the plaintiff each time the defendant engages in antitrust<br />
conduct that harms the plaintiff." Ohio-Sealy Mattress Mfg.<br />
Co. v. Sealy, Inc., 669 F.2d 490, 494 (7th Cir.), cert.<br />
denied, 459 U.S. 943, 103 S.Ct. 257, 74 L.Ed.2d 201 (1982).<br />
The Fifth Circuit explored Lawlor’s application in<br />
Exhibitors Poster Exchange, Inc. v. National Screen Service<br />
Corp., 421 F.2d 1313 (5th Cir.1970).<br />
4<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5924
“On appeal, the Fifth Circuit first examined the<br />
meaning of "cause of action" for res judicata purposes<br />
and found that the doctrine did not apply to a liberal<br />
reading of the third complaint. The court distinguished<br />
cases in which damages came from a prior act, such as<br />
breach of contract, or series of acts that have been<br />
completed except in their consequences and cases in<br />
which damages arose from actions subsequently<br />
occurring, either alone or in combination with the<br />
completed actions. On the facts before it, the court<br />
held that "significant actions ... occurring subsequent<br />
to 1961, either alone or in combination with acts<br />
[completed prior to 1961] except for their<br />
consequences" may be the basis for new damage claims<br />
since the harm currently alleged by plaintiff did not<br />
arise out of the particularized activities previously<br />
adjudicated. 421 F.2d at 1318. As for collateral<br />
estoppel, the court examined the issues raised in the<br />
earlier cases and held that the effect of the orders<br />
granting summary judgment was to wipe out all claims<br />
against the defendants arising out of the 1961 actions.<br />
Plaintiff was entitled, however, to establish antitrust<br />
violations and damages by proof covering post-1961<br />
activities.”<br />
Harkins Amusement v. Harry Nace Co., 648 F.Supp. 1212<br />
at 1215 (Ariz., 1986) The Harkins court ultimately found<br />
that consumer fraud claims brought against the defendants<br />
later conduct could not be precluded. Id. At 1216.<br />
The facts of the <strong>Medical</strong> <strong>Supply</strong> case before us are<br />
similar to those of Cream Top Creamery v. Dean Milk Co.,<br />
383 F.2d 358 (6th Cir.1967). Cream Top involved an action<br />
alleging a continuing scheme to violate antitrust laws<br />
subsequent to a prior dismissal with prejudice. In that<br />
case, the court relied upon Lawlor in reversing the<br />
District Court's order granting summary judgment on res<br />
5<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5925
judicata grounds. The court noted, "[a]t least insofar as<br />
the complaint alleges violations since the dismissal of the<br />
[first] case, the judgment in that case cannot be given the<br />
effect of extinguishing a claim which arose subsequent to<br />
that judgment." Id. at 363 (citing Lawlor, 349 U.S. 322, 75<br />
S.Ct. 865).<br />
The Cellar Door court stated:<br />
“In the case before us, Olympia and Brass Ring's course<br />
of conduct could give rise to more than one cause of<br />
action. Each time the arrangement precluded Cellar Door<br />
from competitively bidding for an event, a cause of<br />
action may have accrued to Cellar Door. Therefore, as<br />
in Lawlor and Cream Top, those causes of action that<br />
arose subsequent to the 1983 dismissal are not barred<br />
by res judicata. Accordingly, we must reverse the<br />
District Court's order granting summary judgment in<br />
favor of appellees.”<br />
Cellar Door Productions, Inc. of Michigan v. Kay, 897<br />
F.2d 1375 at 1378 (C.A.6 (Mich.), 1990).<br />
2. Claim preclusion<br />
Claim preclusion clearly does not apply to the<br />
Novation defendants who were not parties to the previous<br />
action. The Novation defendants were not in privity or<br />
controlling the previous actions. The US Supreme Court in<br />
Lawlor v. National Screen Service Corporation resolved<br />
these issues:<br />
a. Privity<br />
6<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5926
The Novation defendants are not parties in privity for<br />
the purposes of collateral estoppel. “Restatement,<br />
Judgments, § 83, Comment a: 'those who control an action<br />
although not parties to it * * *; those whose interests are<br />
represented by a party to the action * * *; successors in<br />
interest. * * *' “Id ar fn 19 “It is sufficient here to<br />
point out that the five defendants do not fall within the<br />
orthodox categories of privies;” Id. at pg. 329<br />
b. prior outcome of injunction no bar<br />
Nor does the plaintiff’s failure to prevail against<br />
the previous defendants estop the present action:<br />
“There is no merit, therefore, in the respondents'<br />
contention that petitioners are precluded by their<br />
failure in the 1942 suit to press their demand for<br />
injunctive relief. Particularly is this so in view of<br />
the public interest in vigilant enforcement of the<br />
antitrust laws through the instrumentality of the<br />
private treble-damage action. Acceptance of the<br />
respondents' novel contention would in effect confer on<br />
them a partial immunity from civil liability for future<br />
violations. Such a result is consistent with neither<br />
the antitrust laws nor the doctrine of res judicata.”<br />
Id. at pg. 329.<br />
c. Necessary Parties<br />
Nor does the plaintiff’s failure to prevail against<br />
the previous defendants estop the present action:<br />
“in any event there was no obligation to join them<br />
in the 1942 case since as joint tort-feasors they were<br />
not indispensable parties; and that their liability was<br />
not 'altogether dependent upon the culpability' of the<br />
defendants in the 1942 suit.”<br />
7<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5927
Id pg. 328.<br />
d. Identity of claims<br />
Under federal law, collateral estoppel may be invoked<br />
only if "the issue previously decided is identical with the<br />
one presented in the action in question." Frandsen v.<br />
Westinghouse Corp., 46 F.3d 975, 978 (10th Cir.1995).<br />
The current complaint states claims for subsequent<br />
conduct and conduct not yet ripe in the earlier litigation.<br />
“...if future damages are unascertainable, a cause of<br />
action for such damages does not accrue until they occur.<br />
Zenith, 401 U.S. at 339, 91 S.Ct. at 806.” Kaw Valley Elec.<br />
Co-op. Co., Inc. v. Kansas Elec. Power Co-op., Inc., 872<br />
F.2d 931 at FN4 (C.A.10 (Kan.), 1989). See also Barnosky<br />
Oils Inc., v. Union Oil Co., 665 F.2d 74, 82 (6th Cir.<br />
1981). US Bank was still attempting to perform the<br />
financing part of the contract after <strong>Medical</strong> <strong>Supply</strong> filed<br />
its injunctive relief. If “the initial refusal is not<br />
final, each time the victim seeks to deal with the violator<br />
and is rejected, a new cause of action accrues. See Pace<br />
Indus., 813 F.2d at 237-39; Midwestern Waffles, Inc. v.<br />
Waffle House, Inc., 734 F.2d 705, 714-15 (11th<br />
Cir.1984).”Kaw Valley Elec. Co-op. Co., Inc. v. Kansas<br />
8<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5928
Elec. Power Co-op., Inc., 872 F.2d 931 at 933-4 (C.A.10<br />
(Kan.), 1989).<br />
Lawlor v. National Screen also clarifies this issue:<br />
“The conduct presently complained of was all<br />
subsequent to the 1943 judgment. In addition, there are<br />
new antitrust violations alleged here—deliberately slow<br />
deliveries and tie-in sales, among others—not present<br />
in the former action. While the 1943 judgment precludes<br />
recovery on claims arising prior to its entry, it<br />
cannot be given the effect of extinguishing claims<br />
which did not even then exist and which could not<br />
possibly have been sued upon in the previous case. In<br />
the interim, moreover, there was a substantial change<br />
in the scope of the defendants' alleged monopoly; five<br />
other producers had granted exclusive licenses to<br />
National Screen, with the result that the defendants'<br />
control over the market for standard accessories had<br />
increased to nearly 100%. Under these circumstances,<br />
whether the defendants' conduct be regarded as a series<br />
of individual torts or as one continuing tort, the 1943<br />
judgment does not constitute a bar to the instant<br />
suit.” [ emphasis added]<br />
Lawlor v. National Screen Service Corporation, 349<br />
U.S. 322 at 328, 75 S.Ct. 865, 99 L.Ed. 1122 (1955)<br />
Collateral Estoppel Is Inapplicable To The Novation<br />
Defendants<br />
The defense has no clothes. Clearly the three required<br />
elements for claim preclusion or collateral estoppel do not<br />
exist:<br />
“The three requirements for application of claim<br />
preclusion are: (1) identity or privity of the parties;<br />
(2) identity of the cause of action; and (3) a final<br />
judgment on the merits. Id. Where these three<br />
requirements are met, claim preclusion applies to bar<br />
the maintenance of a subsequent suit.”<br />
9<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5929
Heard v. Board of Pub. Util. of Kansas City, Ks, 316<br />
F.Supp.2d 980 at 982 (D. Kan., 2004).<br />
3. Antitrust Conspiracy Sufficiently Pled<br />
There is no heightened pleading standard for<br />
conspiracy or antitrust conspiracy. The claims adequately<br />
apprise the defendants of the gravamen of their conduct:<br />
Under the law, a conspiracy may consist of any mutual<br />
agreement or arrangement, knowingly made, between two or<br />
more competitors. Law v. Nat'l Collegiate Athletic Ass'n<br />
185 F.R.D. 324, 336, n.19 (D. Kan. 1999). The plaintiff has<br />
met the burden of pleading a conspiracy by "identif[ying]<br />
the co-conspirators and describ[ing] the nature and effect<br />
of the alleged conspiracy." Alco Standard Corp. v. Schmid<br />
Bros., 647 F.Supp. 4, 6 (S.D.N.Y.1986).<br />
The hospital supply competitors VHA and UHC’s joint<br />
ownership and agreement to exclusively use the electronic<br />
marketplace Neoforma is such a prohibited combination and<br />
conspiracy.<br />
The hospital supply competitors VHA and UHC’s<br />
formation of the defendant limited liability company<br />
Novation is identified in the complaint as a conspiracy to<br />
restrain trade specifically prohibited under Dagher v.<br />
Saudi Refining Inc., No. 02-56509 (Fed. 9th Cir. 6/1/2004)<br />
(Fed. 9th Cir., 2004).<br />
10<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5930
The plaintiffs other Sherman 1 claims are equally<br />
undismissable. See Eastman Kodak Co. v. Image Tech. Servs.<br />
Inc., 504 U.S. 451, 478, 112 S.Ct. 2072, 119 L.Ed.2d 265<br />
(1992) ("The alleged conduct — higher service prices and<br />
market foreclosure — is facially anticompetitive and<br />
exactly the harm that antitrust laws aim to prevent.");<br />
United States v. VISA U.S.A., Inc., 344 F.3d 229, at 241-43<br />
(2d Cir.2003) (rules for vendor participation causing<br />
reduction in output and consumer choice had anticompetitive<br />
effect); Primetime 24 Joint Venture v. National<br />
Broadcasting Co., 219 F.3d 92, 103-04 (2d Cir.2000)<br />
(refusing to dismiss where complaint alleged agreement<br />
resulting in denial of a necessary input to a competitor).<br />
There is no heightened pleading standard for<br />
conspiracy or antitrust conspiracy. The claims adequately<br />
apprise the defendants of the gravamen of their conduct:<br />
Under the law, a conspiracy may consist of any mutual<br />
agreement or arrangement, knowingly made, between two or<br />
more competitors. Law v. Nat'l Collegiate Athletic Ass'n<br />
185 F.R.D. 324, 336, n.19 (D. Kan. 1999). The plaintiff has<br />
met the burden of pleading a conspiracy by "identif[ying]<br />
the co-conspirators and describ[ing] the nature and effect<br />
of the alleged conspiracy." Alco Standard Corp. v. Schmid<br />
Bros., 647 F.Supp. 4, 6 (S.D.N.Y.1986).<br />
11<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5931
The hospital supply competitors VHA and UHC’s joint<br />
ownership and agreement to exclusively use the electronic<br />
marketplace Neoforma is such a prohibited combination and<br />
conspiracy.<br />
The hospital supply competitors VHA and UHC’s<br />
formation of the defendant limited liability company<br />
Novation is identified in the complaint as a conspiracy to<br />
restrain trade specifically prohibited under Dagher v.<br />
Saudi Refining Inc., No. 02-56509 (Fed. 9th Cir. 6/1/2004)<br />
(Fed. 9th Cir., 2004).<br />
The plaintiffs other Sherman 1 claims are equally<br />
undismissable. See Eastman Kodak Co. v. Image Tech. Servs.<br />
Inc., 504 U.S. 451, 478, 112 S.Ct. 2072, 119 L.Ed.2d 265<br />
(1992) ("The alleged conduct — higher service prices and<br />
market foreclosure — is facially anticompetitive and<br />
exactly the harm that antitrust laws aim to prevent.");<br />
United States v. VISA U.S.A., Inc., 344 F.3d 229, at 241-43<br />
(2d Cir.2003) (rules for vendor participation causing<br />
reduction in output and consumer choice had anticompetitive<br />
effect); Primetime 24 Joint Venture v. National<br />
Broadcasting Co., 219 F.3d 92, 103-04 (2d Cir.2000)<br />
(refusing to dismiss where complaint alleged agreement<br />
resulting in denial of a necessary input to a competitor).<br />
12<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5932
4. Plaintiff sufficiently alleged monopoly power or the<br />
elements of attempt to monopolize<br />
The complaint alleges and Neoforma and the Novation<br />
defendant parties surprisingly subsequently proved the<br />
plaintiff’s claims for Sherman 1 combination and conspiracy<br />
in restraint of trade antitrust violations through their<br />
conduct and official press releases. See Exbs. 3 and 4:<br />
“The current 10-year exclusive outsourcing agreement<br />
was originally entered into in March 2000 and was most<br />
recently amended in August 2003 as a result of<br />
negotiations between the parties to the contract. Under<br />
the terms of that amendment, the quarterly maximum<br />
payment from Novation to Neoforma was established at<br />
$15.25 million, or $61.0 million per year, beginning in<br />
2004.”<br />
Exb 3 Neoforma SEC disclosure press release pg. 1<br />
“In addition, at the effective time of the Merger, VHA<br />
and UHC, which respectively owned 8,611,217 and<br />
2,130,302 shares of Neoforma common stock prior to the<br />
Merger, representing approximately 41.5% and 10.3% of<br />
Neoforma outstanding common stock, respectively had<br />
2,004,190 and 495,810 of their shares of Neoforma<br />
common stock converted into the right to receive $10.00<br />
per share in cash in the Merger. The remainder of the<br />
shares that they held were exchanged, immediately prior<br />
to the closing of the Merger, for membership interests<br />
in GHX representing approximately an 11.6% ownership<br />
interest in GHX for VHA and a 2.9% ownership interest<br />
in GHX for UHC, pursuant to exchange agreements.”<br />
Exb 4 Neoforma SEC disclosure press release pg. 1<br />
The complaint does describe the Novation defendant’s<br />
market power in many places. The following three paragraphs<br />
from the complaint are an example:<br />
13<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5933
56 states: “By 8/21/04 The NY Times reported that the<br />
Justice Department had opened a broad criminal<br />
investigation of the medical-supply industry revealing that<br />
Novation is being subjected to a criminal inquiry:<br />
“Novation's primary business is to pool the<br />
purchasing volume of about 2,200 hospitals, as well as<br />
thousands of nursing homes, clinics and physicians'<br />
practices, and to use their collective power to<br />
negotiate contracts with suppliers at a discount. In<br />
many cases, the contracts offer special rebates to<br />
hospitals that meet certain purchasing targets.<br />
Although Novation is not well known outside the<br />
industry, it wields formidable power because it can<br />
open, or impede, access to a vast institutional market<br />
for health products.” [emphasis added]<br />
433 states:<br />
“The defendant Novation LLC is the largest<br />
Hospital Group Purchasing Organization selling over 30<br />
billion dollars in hospital supplies a year and<br />
controlling the purchasing in 2000 hospitals<br />
nationwide.”<br />
434 states:<br />
“The defendants possess market power having the<br />
power to exclude competitors from 2000 of the nation’s<br />
hospitals, which Novation controls under long term<br />
purchasing contracts. The defendants possess market<br />
power in the ability to charge manufacturers and<br />
suppliers fees to have their products sold to<br />
Novation’s members and additional fees to manufacturers<br />
and suppliers for allowing their products to be sold<br />
though the web where member hospitals are required to<br />
purchase products through Neoforma, Inc. The defendants<br />
possess market power in having exclusive access to<br />
Piper Jaffray’s investor research coverage and annual<br />
healthcare conferences, elements essential to<br />
effectively obtain capitalization through an initial<br />
public offering. The defendants possess market power in<br />
having exclusive access to the commercial banking<br />
facilities of US Bancorp NA.”<br />
14<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5934
The complaint identifies the defendant Neoforma and<br />
the nondefendant coconspirator GHX, LLC as the only other<br />
electronic marketplaces for hospital supplies (40) besides<br />
<strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> and that Neoforma will be merged with<br />
GHX, LLC to monopolize the web based market for hospital<br />
supplies.<br />
The complaint adequately alleges a conspiracy to<br />
monopolize under Section 2. To establish such a claim,<br />
plaintiff must plead and prove (1) a combination or<br />
conspiracy to monopolize; (2) overt acts done in<br />
furtherance of the combination or conspiracy; (3) an effect<br />
upon an appreciable amount of interstate commerce; and (4)<br />
a specific intent to monopolize. Multistate Legal Studies.<br />
Inc. v. Harcourt Brace Jovanovich Legal & Prof'l Publ'ns,<br />
Inc., 63 F.3d 1540, 1556 (10th Cir. 1995).<br />
5. Plaintiff adequately alleges harm to competition<br />
The plaintiff’s complaint documents harm to the market<br />
from the defendants’ artificial inflation of hospital<br />
supply prices. A trilogy of recent Supreme Court decisions<br />
reflect that it is unnecessary at the pleading stage to<br />
state every element of a claim, See Swierkiewicz v. Sorema<br />
N.A., 534 U.S.<br />
15<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5935
506 (2002); Crawford-El v. Britton, 523 U.S. 574 (1998);<br />
Leatherman v. Tarrant County Narcotics Intelligence &<br />
Coordination Unit, 507 U.S. 163 (1993).<br />
6. Plaintiff has standing<br />
The plaintiff <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc., like the<br />
sole proprietorship <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> and Sam Lipari the<br />
founder and CEO of <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. ( a statutory<br />
trustee of the corporation under Missouri § 351.525 RSMo)<br />
and now the proprietor of <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, a hospital<br />
supply business excluded from the market by the continuing<br />
acts of the defendants has standing.<br />
Missouri’s rule 52.13(e) states "When a corporation<br />
has been sued and served with a process or has appeared<br />
while in being, and is thereafter disolved or its charter<br />
forfeited, the action shall not be affected thereby ...."<br />
Accordingly, under § 351.525, "[t]he statutory trustees<br />
succeed to the interest of the corporation by operation of<br />
law ". Sab Harmon Indus. v. All State Bldg. Sys., 733<br />
S.W.2d 476, 483 (Mo.App.1987).<br />
It has been asserted that like the trial court in case<br />
World of Sleep’s conclusion that World of Sleep's lost<br />
profits from potential sales to the licensee stores were<br />
too speculative because "there is no history at all of any<br />
profit or loss on these dealings during the years involved<br />
16<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5936
in this case World of Sleep, Inc. v. La-Z-Boy Chair Co.,<br />
756 F.2d 1467 at 1478 (C.A.10 (Colo.), 1985). This error<br />
contradicts established Tenth Circuit and US Supreme Court<br />
law:<br />
“If proof of a profit and loss history were required,<br />
no plaintiff could ever<br />
recover for losses resulting from his inability to<br />
enter a market. However,<br />
such recoveries are clearly available under section 4<br />
of the Clayton Act.<br />
See, e.g., Zenith, 395 U.S. at 129, 89 S.Ct. at 1579. (<br />
Zenith Radio Corp. v.<br />
Hazeltine Research, Inc., 395 U.S. 100, 123-24, 89<br />
S.Ct. 1562, 1576-77, 23<br />
L.Ed.2d 129 (1969) )”<br />
World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d<br />
1467 at 1478 (C.A.10).<br />
7. Plaintiff pled he required elements for an antitrust<br />
claim based on interlocking directors<br />
The defendants omit that Rule 8 of the federal rules<br />
of civil procedure governs. No special pleading<br />
requirements attach in antitrust cases, beyond those<br />
specifically set out by Congress; antitrust plaintiffs thus<br />
enjoy the same general standard for stating a claim as<br />
other litigants. See Radovich v. National Football League,<br />
352 U.S. 445, 453-54, 77 S.Ct. 390, 1 L.Ed.2d 456 (1957);<br />
Nagler v. Admiral Corporation, 248 F.2d 319, 323-24 (2d<br />
Cir.1957).<br />
17<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5937
The burden to state a claim for interlocking directors<br />
is exceedingly low:<br />
“Defendant also maintains that plaintiff has failed to<br />
state a claim under § 8 of the Clayton Act, 15 U.S.C. §<br />
19. Section 8 prohibits interlocking directorates of<br />
competing corporations if elimination of competition<br />
between them by agreement would violate any of the<br />
antitrust laws. Defendant intends to seek majority<br />
representation on plaintiff's board of directors after<br />
the acquisition of seventy five percent of the<br />
plaintiff's stock (SEC FORM S-7 at 16). United States<br />
v. Sears, Roebuck & Co., 111 F.Supp. 614<br />
(S.D.N.Y.1953), the district court granted summary<br />
judgment against the defendant, ordering the<br />
resignation of a director from the board of one or both<br />
of two competitor corporations upon which he sat,<br />
because of a potential anticompetitive agreement.10 In<br />
light of Sears, we hold that plaintiff has adequately<br />
stated a claim under § 8 of the Clayton Act.”<br />
American Medicorp, Inc. v. Humana, Inc., 445 F.Supp.<br />
573 at 587 (E.D. Pa., 1977). At footnote 10, the American<br />
Medicorp court goes on to explain the purpose for easily<br />
triggering interlocking directorate liability:<br />
“[w]hat Congress intended by § 8 was to nip in the<br />
bud incipient violations of the antitrust laws by<br />
removing the opportunity or temptation to such<br />
violations through interlocking directorates. The<br />
legislation was essentially preventative.<br />
* * * * * *<br />
While it may be acknowledged that the<br />
clause is not crystal clear, to infuse it with the<br />
meaning contended for by the defendants would defeat<br />
the Congressional purpose "to arrest the creation of<br />
trusts, conspiracies and monopolies in their incipiency<br />
and before consummation." This conclusion is compelled<br />
because of the futility of trying to decide whether a<br />
given hypothetical merger would violate the pertinent<br />
sections of the antitrust laws. Sears, supra, at 616-<br />
617. (Footnotes omitted).”<br />
18<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5938
The complaint states the defendants had interlocking<br />
directors to facilitate their monopoly and that antitrust<br />
law violations occurred:<br />
235 states:<br />
“The May 25, 2000 announcement also revealed the<br />
interlocking directors used by the Defendants to<br />
restrain trade in hospital supplies. In connection with<br />
the new agreements, two of the seven seats on the<br />
Neoforma.com Board of Directors will be filled by VHA<br />
designees after closing of the transaction.”<br />
368 states:<br />
“(US Bancorp has interlocking directorships and an<br />
exchange of directors with the two dominant GPO founders of<br />
GHX LLC.; the Defendant Novation and Premier. US Bancorp<br />
helped the Defendant Novation acquire control of the<br />
Defendant Neoforma and partner it with GHX LLC. creating a<br />
monopoly of over 80% of healthcare e-commerce).”<br />
424 states:<br />
“<strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. has been excluded from the<br />
hospital supply market with agreements between UHA and<br />
VHA’s Novation in combination with their electronic<br />
marketplace Neoforma, Inc. US Bancorp NA, and The Piper<br />
Jaffray Companies exchanged directors with Novation and<br />
participated in exclusive agreements with Novation and<br />
Neoforma to keep hospitals using technology products from<br />
companies US Bancorp NA and Piper Jaffray had an interest<br />
in. The purpose of these agreements was to injure the<br />
hospital supply consumers with artificially inflated<br />
prices.”<br />
500 states:<br />
“The Defendants use of interlocking directors in<br />
joint ventures and LLC’s formed by competing suppliers,<br />
manufacturers and distributors and use of interlocking<br />
directors on the boards of healthcare technology and<br />
supply chain management companies violate Section 8 of<br />
the Clayton Act, 15 U.S.C. § 19.”<br />
19<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5939
502 states:<br />
“Defendants through the use of interlocking<br />
directors collectively have at all times material to<br />
this complaint maintained, attempted to achieve and<br />
maintain, or combined or conspired to achieve and<br />
maintain, a monopoly over the sale of hospital<br />
supplies, the sale of hospital supplies in e-commerce,<br />
and over the capitalization of healthcare technology<br />
companies and supply chain management companies in the<br />
several Stated of the United States; and have used,<br />
attempted to use, or combined and conspired to use,<br />
their monopoly power and interlocking directors to<br />
affect competition in the sale of hospital supplies,<br />
the sale of hospital supplies in e-commerce, and over<br />
the capitalization of healthcare technology companies<br />
and supply chain management companies sale of the same<br />
in the several States of the United States in violation<br />
of 15 U.S.C. § 19.”<br />
8. Plaintiff attempts to assert a RICO claim, but fails to<br />
allege a racketeering act, a pattern of racketeering, or a<br />
RICO injury;<br />
The plaintiff has adequately alleged the existence of<br />
a RICO enterprise and that the Novation defendants is part<br />
of the association in fact that comprises the enterprise.<br />
a. Enterprise<br />
Allegations of the existence of a RICO enterprise must<br />
meet only the "notice pleading" requirements of Fed.R.Civ.<br />
Pro. 8. Trustees of Plumbers and Pipefitters 886 F.Supp.<br />
1134, 1144-45 (S.D.N.Y.1995)' Nat'l Pension Fund v.<br />
Transworld Mech., Inc., 886 F.Supp. 1134, 1144-45<br />
(S.D.N.Y.1995); Azurite Corp. v. Amster & Co., 730 F.Supp.<br />
571 (S.D.N.Y.1990).<br />
20<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5940
The enterprise was alleged to have committed predicate<br />
acts in violation of 18 U.S.C. § 1962(c) and they were<br />
alleged with the required specificity and identified which<br />
defendants committed which acts.<br />
"To sufficiently state a RICO claim, [p]laintiffs must<br />
plead `(1) conduct, (2) of an enterprise, (3) through a<br />
pattern, (4) of racketeering activity.'" Cyber Media Group,<br />
Inc. v. Island Mortgage Network, Inc., 183 F.Supp.2d 559,<br />
578 (E.D.N.Y. 2002) (quoting Sedima, S.P.R.L. v. Imrex Co.,<br />
Inc., 473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346<br />
(1985)).”<br />
Calabrese v. Csc Holdings, Inc., 283 F.Supp.2d 797 at<br />
807 (E.D.N.Y., 2003). See also Krear v. Malek, 961 F.Supp.<br />
1065 (E.D. Mich., 1997):<br />
“Regardless, plaintiffs have sufficiently alleged an<br />
"enterprise" in that they have alleged an associationin-fact<br />
between Lease Equities, NBF, NBF Cable, Turner<br />
and Malek. See Frank v. D'Ambrosi, 4 F.3d 1378, 1386<br />
(6th Cir.1993). In Frank, the Sixth Circuit stated<br />
that: "To satisfy the enterprise requirement, an<br />
association-in-fact must be an ongoing organization,<br />
its members must function as a continuing unit, and it<br />
must be separate from the pattern of racketeering<br />
activity in which it engages." Id. (citing United<br />
States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524,<br />
2528-29, 69 L.Ed.2d 246 (1981)).<br />
Plaintiffs have properly alleged that the<br />
racketeering activity, i.e., the sale of notes through<br />
Lease Equities to perpetuate the alleged Ponzi scheme,<br />
is distinct from the association-in-fact which<br />
associated for legitimate business purposes, to wit:<br />
Lease Equities entered into legitimate leases with<br />
third parties; NBF Cable entered into legitimate cable<br />
television contracts; and Lease Equities was a secured<br />
creditor of NBF Cable.<br />
Third, plaintiffs have sufficiently alleged,<br />
under § 1962(d), that defendants conspired to violate<br />
§§ 1962(b) and (c). To state a claim under § 1962(d), a<br />
plaintiff must plead that the defendant agreed to join<br />
21<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5941
the conspiracy, agreed to commit predicate acts, and<br />
knew that those acts were part of a pattern of<br />
racketeering activity. See Glessner v. Kenny, 952 F.2d<br />
702, 714 (3rd Cir. 1991). While plaintiffs have not<br />
used the word "agreement" per se, they have stated that<br />
defendants Malek, Turner and Lease Equities "have<br />
conspired to violate RICO," and have well-pleaded a set<br />
of facts from which a conspiracy can be inferred in the<br />
FARCS. See Baumer v. Pachl, 8 F.3d 1341, 1346 (9th<br />
Cir.1993); Manning v. Stigger, 919 F.Supp. 249, 254<br />
(E.D.Ky.1996).”<br />
Krear v. Malek, 961 F.Supp. 1065 at 1070-1071 (E.D.<br />
Mich., 1997).<br />
b. RICO Conspiracy<br />
The complaint alleges the Novation defendants are part<br />
of a RICO conspiracy. Plaintiffs have alleged that the<br />
defendant First Franklin engaged in a conspiracy to commit<br />
the acts mentioned above in violation of 18 U.S.C. §<br />
1962(d). 18 U.S.C. § 1962(d) states: "It shall be unlawful<br />
for any person to conspire to violate any of the provisions<br />
of subsection (a), (b), or (c) of this section." 18 U.S.C.<br />
§ 1962(d).<br />
c. No Overt Act Required<br />
The Supreme Court's 1997 decision Salinas v. United<br />
States, 522 U.S. 52, 118 S.Ct. 469, 139 L.Ed.2d 352, is<br />
controlling. The Supreme Court held that plaintiffs need<br />
only allege that defendants "knew of and agreed to<br />
facilitate the scheme." Id. at 478.<br />
22<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5942
There is no requirement of some overt act or<br />
specific act in the [RICO] statute before us, unlike the<br />
general conspiracy provision applicable to federal crimes,<br />
which requires that at least one of the conspirators have<br />
committed an `act to effect the object of the conspiracy.'<br />
§ 371:<br />
“A [RICO] conspirator must intend to further an<br />
endeavor which, if completed, would satisfy all of the<br />
elements of a substantive criminal offense, but it<br />
suffices that he adopt the goal of furthering or<br />
facilitating the criminal endeavor ... One can be a<br />
conspirator by agreeing to facilitate only some of the<br />
acts leading to the substantive offense. It is<br />
elementary that a [RICO] conspiracy may exist and be<br />
punished whether or not the substantive crime ensues,<br />
for the conspiracy is a distinct evil, and so<br />
punishable in itself.”<br />
Salinas, 118 S.Ct. at 476-77.<br />
The Novation defendants do not refute the conduct of<br />
the other defendants. Having established a RICO conspiracy,<br />
the Novation defendants must make a factual showing to<br />
escape. "Once a conspiracy is shown to exist, the evidence<br />
sufficient to link another defendant to it need not be<br />
overwhelming." United States v. Diaz, 176 F.3d 52, 97 (2d<br />
Cir.1999) (quoting United States v. Amato, 15 F.3d 230, 235<br />
(2d Cir.1994)). Plaintiff’s § 1962(d) allegations suffice<br />
to satisfy Salinas.<br />
"[o]nce a RICO enterprise is established, a defendant<br />
may be found liable even if he does not have specific<br />
knowledge of every member and component of the<br />
23<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5943
enterprise." Mason Tenders District Council Pension<br />
Fund v. Messera, 1996 WL 351250 at *6 (S.D.N.Y.1996)<br />
("Whether or not this conduct is viewed as being at the<br />
core of the enterprise ..."). Furthermore, "[t]he RICO<br />
statute has been repeatedly construed to cover both<br />
insiders as well as those peripherally connected to a<br />
RICO enterprise, particularly where the "outsiders" are<br />
alleged to have engaged in kick-backs in order to<br />
influence the enterprise's decision." Id. Azrielli v.<br />
Cohen Law Offices, 21 F.3d 512, 514-15, 521 (2d<br />
Cir.1994) (Judge Kearse held that the district court<br />
should not have dismissed the § 1962(c) claim against<br />
defendant who served as "the middle person in [a] flip<br />
sale" of a building "`by allowing his name to be used<br />
on the bogus contract and showing up at the<br />
closing.'").”<br />
In re Sumitomo Copper Litigation, 104 F.Supp.2d 314<br />
(S.D.N.Y., 2000).<br />
To be convicted of conspiracy to violate RICO under §<br />
1962(d), the conspirator need not himself have committed or<br />
agreed to commit the two or more predicate acts, as long as<br />
each agreed to act in furtherance of the scheme. Salinas v.<br />
United States, 522 U.S. 52, 63, 118 S.Ct. 469, 139 L.Ed.2d<br />
352 (1997). Under this statute, there is no requirement of<br />
some overt act in furtherance of the conspiracy. Id.<br />
9. Plaintiff’s USA Patriot Act claim is a legally valid<br />
private cause of action under that Act as a matter of law.<br />
There are numerous expressly stated private causes of<br />
action under USA PATRIOT Act Public Law 107–56 ‘‘Uniting<br />
and Strengthening America by Providing Appropriate Tools<br />
Required to Intercept and Obstruct Terrorism (USA PATRIOT<br />
ACT) Act of 2001’’ contains private rights of action even<br />
24<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5944
expressly stated in the acts subheadings; SEC. 223. CIVIL<br />
LIABILITY FOR CERTAIN UNAUTHORIZED DISCLOSURES and the<br />
plaintiff’s averred malicious reporting to which there is a<br />
private right in SEC. 355 which states:<br />
‘‘(3) MALICIOUS INTENT.—Notwithstanding any other<br />
provision of this subsection, voluntary disclosure made<br />
by an insured depository institution, and any director,<br />
officer, employee, or agent of such institution under<br />
this subsection concerning potentially unlawful<br />
activity that is made with malicious intent, shall not<br />
be shielded from liability from the person identified<br />
in the disclosure.” [ emphasis added ].<br />
Additional private rights of action are communicated in<br />
sections that immunize “good faith” disclosure of<br />
information from third parties. The qualifying of immunity<br />
to third parties’ causes of action for civil liability are<br />
expressions of Congressional intent for private rights of<br />
action; i.e. § 215 of USA Patriot amends FISA § 501(e) (as<br />
amended): “A person who, in good faith, produces tangible<br />
things under an order pursuant to this section shall not be<br />
liable to any other person for such production.”<br />
10. US District Courts Recognize USA PATRIOT Act Private<br />
Rights of Action<br />
It is unclear how the Novation defendants state such a<br />
clearly erroneous assertion as the non existence of private<br />
rights of action under the USA PATRIOT Act when it is<br />
contradicted by case law:<br />
25<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5945
“Section 315 of the Patriot Act amends and expands 18<br />
U.S.C. § 1956(c)(7), a RICO provision that establishes<br />
money-laundering as a predicate act. Pub.L. No. 107-56,<br />
§ 315; or 18 U.S.C. § 1961(1).”<br />
European Community v. Japan Tobacco, Inc., 186<br />
F.Supp.2d 231 at pg. 238 (E.D.N.Y., 2002).<br />
“…as part of the USA-PATRIOT Act, the Congress again<br />
amended § 2520 to add that an aggrieved party could<br />
recover from an intercepting "person or entity, other<br />
than the United States." Pub.L. No. 107-56, § 223, 115<br />
Stat. 293, 384”<br />
Williams v. City of Tulsa, Ok, 393 F.Supp.2d 1124<br />
(N.D. Okla., 2005)<br />
“Finally, section 2520(a) was again amended in 2001 by<br />
the USA Patriot Act, which added the phrase "other than<br />
the United States" following "person or entity." See<br />
Uniting and Strengthening America by Providing<br />
Appropriate Tools Required to Intercept and Obstruct<br />
Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No.<br />
107-56, 115 Stat. 272 (2001). Thus, as currently<br />
enacted, section 2520(a) states that "any person whose<br />
wire, oral, or electronic communication is intercepted,<br />
disclosed, or intentionally used in violation of this<br />
chapter may in a civil action recover from the person<br />
or entity, other than the United States, which engaged<br />
in that violation such relief as may be appropriate."<br />
18 U.S.C.A. § 2520(a) (West Supp. 2003) (emphasis<br />
added).”<br />
Huber v. North Carolina State University, No. COA03-<br />
145 (N.C. App. 4/20/2004) (N.C. App., 2004).<br />
11. Plaintiff’s case has been brought in good faith.<br />
The complaint alleges the Novation defendants knew of<br />
and participated in the efforts to deny the plaintiff legal<br />
representation. The Novation defendants overtly<br />
26<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5946
participated in a pleading to prevent Sam Lipari from being<br />
substituted. In evaluating a dismissal the allegations in<br />
the complaint are taken as true. The question of dismissal<br />
does not concern the conduct of the plaintiff to avoid<br />
injustly being deprived of redress through representation.<br />
12. Plaintiff Has an Unresolved/Unripe Antitrust Merger<br />
Claim<br />
The court’s present ruling if unchanged would lead to<br />
another year’s delay when the plaintiff files his antitrust<br />
claim for injury from the merger of Neoforma, Inc. and<br />
GHX,LLC. The defendants would no doubt claim res judicata<br />
and claim preclusion and seek to have the plaintiff<br />
sanctioned without once identifying the transaction date<br />
and whether it was subsequent to the present complaint.<br />
Conclusion<br />
The plaintiff respectfully requests the court<br />
reconsider its opinion and issue a revised opinion in<br />
conformance with controlling applicable law. If the court<br />
follows controlling case law and the express language of<br />
federal statutes, there is no basis for sanctioning the<br />
plaintiff or his former counsel.<br />
Respectfully Submitted,<br />
____________________<br />
Samuel K. Lipari<br />
297 NE Bayview<br />
Lee's Summit, 816-365-1306<br />
27<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5947
saml@medicalsupplychain.com<br />
Pro se<br />
Certificate of Service<br />
I certify that on March 14 th , 2006 I mailed a copy of the<br />
following to:<br />
Mark A. Olthoff , Jonathan H. Gregor, Logan W. Overman,<br />
Shughart Thomson & Kilroy, P.C. 1700 Twelve Wyandotte<br />
Plaza 120 W 12th Street Kansas City, Missouri 64105-1929<br />
Andrew M. Demarea, Corporate Woods Suite 1100, Building<br />
#32 9225 Indian Creek Parkway Overland Park, Kansas<br />
66210 (913) 451-3355 (913) 451-3361 (FAX)<br />
John K. Power, Esq. Husch & Eppenberger, LLC 1700 One<br />
Kansas City Place 1200 Main Street Kansas City, MO<br />
64105-2122 ( Also attorney for the General Electric<br />
defendants and Jeffrey Immelt.)<br />
Stephen N. Roberts, Esq. Natausha Wilson, Esq. Nossaman,<br />
Guthner, Knox & Elliott 34th Floor 50 California Street<br />
San Francisco, CA 94111<br />
Bruce Blefeld, Esq. Kathleen Bone Spangler, Esq. Vinson &<br />
Elkins L.L.P. 2300 First City Tower 1001 Fannin Houston,<br />
TX 77002<br />
____________________<br />
Samuel K. Lipari<br />
297 NE Bayview<br />
Lee's Summit, 816-365-1306<br />
saml@medicalsupplychain.com<br />
Pro se<br />
28<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5948
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<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5951
UNITED STATES COURT OF APPEALS<br />
FILED<br />
United States Court of Appeals<br />
Tenth Circuit<br />
FOR THE TENTH CIRCUIT<br />
NOV 8 2004<br />
PATRICK FISHER<br />
Clerk<br />
MEDICAL SUPPLY CHAIN, INC.,<br />
Plaintiff-Appellant,<br />
v.<br />
US BANCORP, NA; US BANK<br />
PRIVATE CLIENT GROUP;<br />
CORPORATE TRUST;<br />
INSTITUTIONAL TRUST AND<br />
CUSTODY; MUTUAL FUND<br />
SERVICES, LLC.; PIPER JAFFRAY;<br />
ANDREW CESERE; SUSAN PAINE;<br />
LARS ANDERSON; BRIAN KABBES;<br />
UNKNOWN HEALTHCARE<br />
SUPPLIER,<br />
No. 03-3342<br />
(D.C. No. 02-CV-2539-CM)<br />
(D. Kan.)<br />
Defendants-Appellees.<br />
ORDER AND JUDGMENT *<br />
Before McCONNELL, HOLLOWAY, and PORFILIO, Circuit Judges.<br />
*<br />
This order and judgment is not binding precedent, except under the doctrines of Exb 17<br />
law of the case, res judicata, and collateral estoppel. The court generally disfavors the<br />
citation of orders and judgments; nevertheless, an order and judgment may be cited under<br />
the terms and conditions of 10th Cir. R. 36.3.<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5952
After examining the briefs and appellate record, this panel has determined<br />
unanimously to grant the partiesí request for a decision on the briefs without oral<br />
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered<br />
submitted without oral argument.<br />
<strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. appeals from the dismissal of its complaint asserting<br />
claims under the Sherman Antitrust Act, the Clayton Antitrust Act, the Hobbs Act, and<br />
the USA Patriot Act, and various state law claims. In dismissing the complaint, the<br />
district court determined that plaintiff failed to state a claim for relief under each of the<br />
antitrust acts and that there was no private right of action under the USA Patriot Act.<br />
Because the district court dismissed all of plaintiffís federal law claims, it declined to<br />
retain jurisdiction over appellantís state law claims. Plaintiff argues that the district court<br />
erred by: 1) dismissing plaintiffís antitrust claims by imposing a heightened pleading<br />
standard, 1 and 2) finding no private right of action under the USA Patriot Act. We review<br />
de novo the district courtís grant of a motion to dismiss pursuant to Fed. R. Civ. P.<br />
12(b)(6). Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.<br />
1999).<br />
Having reviewed the briefs, the record, and the applicable law pursuant to the<br />
above-mentioned standard, we conclude that the district court correctly decided this case.<br />
We therefore AFFIRM the challenged decision for the same reasons stated by the district<br />
court in its Memorandum and Order of June 16, 2003. Appellantís Motion to Amend<br />
Complaint on Jurisdictional Grounds is DENIED.<br />
Finally, in the district courtís order, the court reminded plaintiffís counsel of his<br />
obligations under Rule 11 and stated ì[p]laintiffís counsel is advised to take greater care<br />
1<br />
Appellantís brief mentions its Clayton Act and Hobbs Act claims, but appellant<br />
fails to include any argument as to how the district court erred in dismissing those claims.<br />
See Aplt. Br. at 7-8, 19. Any issue with respect to those claims is therefore waived.<br />
Ambus v. Granite Bd. of Educ., 975 F.2d 1555 (10th Cir. 1992).<br />
2<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5953
in ensuring that the claims he brings on his clientsí behalf are supported by the law and<br />
the facts.î Aplt. App. Vol. II at 402. Plaintiff then proceeded to file this appeal that is not<br />
supported by the law or the facts. Accordingly, we ORDER the plaintiff and plaintiffís<br />
counsel to SHOW CAUSE in writing within twenty days of the date of this order why<br />
they, jointly or severally, should not be sanctioned for this frivolous appeal pursuant to<br />
Fed. R. App. P. 38. See Braley v. Campbell, 832 F.2d 1504, 1510-11 (10th Cir. 1987)<br />
(discussing courtís ability to impose sanctions against clients and their attorneys under<br />
Fed. R. App. P. 38).<br />
Entered for the Court<br />
John C. Porfilio<br />
Circuit Judge<br />
3<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5954
UNITED STATES COURT OF APPEALS<br />
FOR THE TENTH CIRCUIT<br />
MEDICAL SUPPLY CHAIN, INC.,<br />
v.<br />
Plaintiff-Appellant,<br />
US BANCORP, NA; US BANK PRIVATE CLIENT GROUP;<br />
CORPORATE TRUST; INSTITUTIONAL TRUST AND CUSTODY;<br />
MUTUAL FUND SERVICES, LLC.; PIPER JAFFRAY; ANDREW<br />
CESERE; SUSAN PAINE; LARS ANDERSON; BRIAN KABBES;<br />
UNKNOWN HEALTHCARE SUPPLIER,<br />
Defendants-Appellees.<br />
ANSWER TO SHOW CAUSE ON SANCTIONS<br />
At the close of the US Senate Judiciary Committee's Antitrust<br />
Subcommittee's hearing entitled “Hospital Group Purchasing: How to<br />
Maintain Innovation and Cost Savings” on Tuesday, September 14, 2004,<br />
the subcommittee's chair suggested that the 1.8 trillion dollar market's anticompetitive<br />
behavior might be better corrected with private antitrust<br />
litigation than with new legislation. The plaintiff-appellant <strong>Medical</strong> <strong>Supply</strong><br />
<strong>Chain</strong>, Inc. believes the Sherman Act prohibits the admitted conduct of the<br />
defendants in keeping <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. from competing with the<br />
defendants’ openly publicized combination to restrain trade in hospital<br />
1<br />
Exb 18<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5955
supplies which included the threat of malicious USA PATRIOT Act<br />
reporting and the repudiation of the defendants’ contract to provide <strong>Medical</strong><br />
<strong>Supply</strong> <strong>Chain</strong>, Inc. escrow accounts required for capitalizing its market<br />
entry.<br />
Plaintiff and plaintiff’s counsel continue to recognize and assert that<br />
the district court erred by: 1) dismissing plaintiff’s antitrust claims by<br />
imposing a heightened pleading standard, and 2) finding no private right of<br />
action under the USA Patriot Act.<br />
Plaintiff filed this appeal that is supported by the law and the facts.<br />
Plaintiff incorporates by reference plaintiff’s appellate opening and reply<br />
briefs along with the supporting record contained in the appendices for<br />
docket # 03-3342 and docket # 02-3443 including the evidentiary<br />
attachments of both parties in support of their motions for pre-hearing relief.<br />
The defendant U.S. Bank was in contract with <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>,<br />
Inc. to provide escrow accounts. U.S. Bank broke the contract, <strong>Medical</strong><br />
<strong>Supply</strong> <strong>Chain</strong>, Inc.’s complaint (written shortly after to obtain emergency<br />
injunctive relief and avoid the resulting irreparable harm 1 ) alleged the<br />
1<br />
The defendant US Bancorp Piper Jaffray’s adverse admission of<br />
economic research reveals that a web based electronic marketplace for<br />
hospital supplies like <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. would eliminate 83 billion<br />
dollars in inefficiency. Plaintiff’s Amended Complaint 27.<br />
2<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5956
eaking of the contract was a result of exclusive dealing agreements<br />
between the defendants which included Unknown Healthcare Supplier.<br />
“[T]he exclusive dealing arrangement itself satisfies the § 1 requirement of<br />
coordinated action.” Geneva Pharmaceuticals Technology Corp. v. Barr<br />
Laboratories Inc., No. 02-9222 at pg. 45 (Fed. 2nd Cir. 10/18/2004) (Fed.<br />
2nd Cir., 2004).<br />
<strong>Medical</strong> <strong>Supply</strong>’s complaint satisfied the two or more independent<br />
actors requirement for a Sherman 1 prohibited combination. To prove a § 1<br />
violation, a plaintiff must demonstrate: (1) a combination or some form of<br />
concerted action between at least two legally distinct economic entities that<br />
(2) unreasonably restrains trade. See Tops Mkts., 142 F.3d at 95; Capital<br />
Imaging Assocs., P.C. v. Mohawk Valley Med. Assocs., Inc., 996 F.2d 537,<br />
542 (2d Cir. 1993).<br />
The plaintiff’s complaint in the alternative alleged the actions of the<br />
defendant US Bancorp companies as a single firm in breaking the contract<br />
violated Sherman 2:<br />
“The leading case imposing § 2 liability for refusal to deal with<br />
competitors is Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472<br />
U. S. 585, in which the Court concluded that the defendant's<br />
termination of a voluntary agreement with the plaintiff suggested a<br />
willingness to forsake short-term profits to achieve an anticompetitive<br />
end.” [emphasis added]<br />
3<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5957
Verizon Communications Inc. v. Law Offices of Trinko, 540 U.S. ___<br />
(U.S. 1/13/2004) (2004).<br />
Finally, the plaintiff and plaintiff’s counsel decline to accept Hon.<br />
Judge John C. Porfilio’s revisionist pronouncement about the lack of a<br />
private right of action in the USA PATRIOT Act.<br />
Public Law 107–56 ‘‘Uniting and Strengthening America by<br />
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism<br />
(USA PATRIOT ACT) Act of 2001’’ contains at least two private rights of<br />
action 2 ; SEC. 223. CIVIL LIABILITY FOR CERTAIN UNAUTHORIZED<br />
DISCLOSURES and the plaintiff’s often averred malicious reporting to<br />
which there is a private right in SEC. 355 which states ‘‘(3) MALICIOUS<br />
INTENT.—Notwithstanding any other provision of this subsection,<br />
voluntary disclosure made by an insured depository institution, and any<br />
director, officer, employee, or agent of such institution under this subsection<br />
concerning potentially unlawful activity that is made with malicious intent,<br />
2<br />
Additional private rights of action are communicated in sections that<br />
immunize “good faith” disclosure of information from third parties. The<br />
qualifying of immunity to third parties’ causes of action for civil liability are<br />
expressions of Congressional intent for private rights of action; i.e. § 215 of<br />
USA Patriot amends FISA § 501(e) (as amended): “A person who, in good<br />
faith, produces tangible things under an order pursuant to this section shall<br />
not be liable to any other person for such production.”<br />
4<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5958
shall not be shielded from liability from the person identified in the<br />
disclosure.” [ emphasis added ].<br />
Plaintiff’s counsel calls this court’s attention to the fact that<br />
irreparable harm has been suffered by the plaintiff and the nation’s hospitals,<br />
including loss of human lives while respectful requests for relief have been<br />
met with the trial court’s dismissal, this court’s denial of pre-hearing relief 3<br />
and the present decision.<br />
The plaintiff’s counsel has responded with timely well researched<br />
pleadings based upon a thorough investigation of the facts and applicable<br />
law. <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong>, Inc. will continue to seek a hearing from a court<br />
that will do the same.<br />
Respectfully Submitted<br />
S/Bret D. Landrith<br />
___________________<br />
Bret D. Landrith<br />
Kansas Supreme Court ID # 20380<br />
# G33,<br />
2961 SW Central Park,<br />
Topeka, KS 66611<br />
1-785-267-4<strong>08</strong>4<br />
landrithlaw@cox.net<br />
3<br />
The trial court based its dismissal in part upon this court’s denial of pre<br />
hearing relief in #02-3443, a decision the plaintiff’s memorandums of<br />
6/26/03 and 7/10/03 showed surprisingly contradicted Tenth Circuit<br />
controlling authority.<br />
5<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5959
Certificate of Service<br />
I certify I have served two copies of this pleading upon opposing<br />
counsel listed below via U.S. Mail on November 10 th , 2004.<br />
Mark A. Olthoff<br />
Shughart Thomson & Kilroy, PC--Kansas City<br />
Twelve Wyandotte Plaza<br />
120 West 12th Street<br />
Kansas City, MO 64105<br />
816-421-3355<br />
Fax: 816-374-0509<br />
Email: molthoff@stklaw.com<br />
6<br />
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5960
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<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5962
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<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5965
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5966
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5967
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5968
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5969
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5970
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5971
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5972
<strong>08</strong>-<strong>3187</strong> <strong>Medical</strong> <strong>Supply</strong> <strong>Chain</strong> vs. Neoforma <strong>Volume</strong> XV 5973